" ! HOUSE OF REPRESENTATIVES 109TH CONGRESS

1st Session 

REPORT

109–345, Part I 

BORDER PROTECTION, ANTITERRORISM, 

AND ILLEGAL IMMIGRATION CONTROL 

ACT OF 2005 

R E P O R T 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

TO ACCOMPANY

H.R. 4437 

together with 

ADDITIONAL AND DISSENTING VIEWS 

DECEMBER 13, 2005.—Ordered to be printed 


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BORDER PROTECTION, ANTITERRORISM, AND 

ILLEGAL IMMIGRATION CONTROL ACT OF 2005 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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1 

24–989 

" ! HOUSE OF REPRESENTATIVES 109TH CONGRESS

1st Session 

REPORT

2005

109–345, Part I 

BORDER PROTECTION, ANTITERRORISM, 

AND ILLEGAL IMMIGRATION CONTROL 

ACT OF 2005 

R E P O R T 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

TO ACCOMPANY

H.R. 4437 

together with 

ADDITIONAL AND DISSENTING VIEWS 

DECEMBER 13, 2005.—Ordered to be printed 


seneagle
109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 109–345, Part I 

BORDER PROTECTION, ANTITERRORISM, AND ILLEGAL 

IMMIGRATION CONTROL ACT OF 2005 

DECEMBER 13, 2005.—Ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND DISSENTING VIEWS 

[To accompany H.R. 4437] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 4437) to amend the Immigration and Nationality Act to 

strengthen enforcement of the immigration laws, to enhance border 

security, and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that 

the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 44 

Background and Need for the Legislation ............................................................. 45 

Hearings ................................................................................................................... 46 

Committee Consideration ........................................................................................ 46 

Vote of the Committee ............................................................................................. 46 

Committee Oversight Findings ............................................................................... 49 

New Budget Authority and Tax Expenditures ...................................................... 49 

Congressional Budget Office Cost Estimate .......................................................... 49 

Performance Goals and Objectives ......................................................................... 57 

Constitutional Authority Statement ...................................................................... 58 

Section-by-Section Analysis and Discussion .......................................................... 58 

Changes in Existing Law Made by the Bill, as Reported ..................................... 78 

Committee Jurisdiction Letters .............................................................................. 141 

Markup Transcript .................................................................................................. 146 

Additional Views ...................................................................................................... 457 

Dissenting Views ..................................................................................................... 459 

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THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Border Protection, 

Antiterrorism, and Illegal Immigration Control Act of 2005’’. 

(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. State defined. 

Sec. 3. Sense of Congress on setting a manageable level of immigration. 

TITLE I—SECURING UNITED STATES BORDERS 

Sec. 101. Achieving operational control on the border. 

Sec. 102. National strategy for border security. 

Sec. 103. Implementation of cross-border security agreements. 

Sec. 104. Biometric data enhancements. 

Sec. 105. One face at the border initiative. 

Sec. 106. Secure communication. 

Sec. 107. Port of entry inspection personnel. 

Sec. 108. Canine detection teams. 

Sec. 109. Secure border initiative financial accountability. 

Sec. 110. Border patrol training capacity review. 

Sec. 111. Airspace security mission impact review. 

Sec. 112. Repair of private infrastructure on border. 

Sec. 113. Border Patrol unit for Virgin Islands. 

Sec. 114. Report on progress in tracking travel of Central American gangs along international border. 

Sec. 115. Collection of data. 

Sec. 116. Deployment of radiation detection portal equipment at United States ports of entry. 

Sec. 117. Consultation with businesses and firms. 

TITLE II—COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE 

Sec. 201. Definition of aggravated felony. 

Sec. 202. Alien smuggling and related offenses. 

Sec. 203. Improper entry by, or presence of, aliens. 

Sec. 204. Reentry of removed aliens. 

Sec. 205. Mandatory sentencing ranges for persons aiding or assisting certain reentering aliens. 

Sec. 206. Prohibiting carrying or using a firearm during and in relation to an alien smuggling crime. 

Sec. 207. Clarifying changes. 

Sec. 208. Voluntary departure reform. 

Sec. 209. Deterring aliens ordered removed from remaining in the United States unlawfully and from unlawfully returning to the United States after departing voluntarily. 

Sec. 210. Establishment of a special task force for coordinating and distributing information on fraudulent immigration documents. 

TITLE III—BORDER SECURITY COOPERATION AND ENFORCEMENT 

Sec. 301. Joint strategic plan for United States border surveillance and support. 

Sec. 302. Border security on protected land. 

Sec. 303. Border security threat assessment and information sharing test and evaluation exercise. 

Sec. 304. Border Security Advisory Committee. 

Sec. 305. Permitted use of Homeland Security grant funds for border security activities. 

Sec. 306. Center of excellence for border security. 

Sec. 307. Sense of Congress regarding cooperation with Indian Nations. 

TITLE IV—DETENTION AND REMOVAL 

Sec. 401. Mandatory detention for aliens apprehended at or between ports of entry. 

Sec. 402. Expansion and effective management of detention facilities. 

Sec. 403. Enhancing transportation capacity for unlawful aliens. 

Sec. 404. Denial of admission to nationals of country denying or delaying accepting alien. 

Sec. 405. Report on financial burden of repatriation. 

Sec. 406. Training program. 

Sec. 407. Expedited removal. 

Sec. 408. GAO study on deaths in custody. 

TITLE V—EFFECTIVE ORGANIZATION OF BORDER SECURITY AGENCIES 

Sec. 501. Enhanced border security coordination and management. 

Sec. 502. Office of Air and Marine Operations. 

Sec. 503. Shadow Wolves transfer. 

TITLE VI—TERRORIST AND CRIMINAL ALIENS 

Sec. 601. Removal of terrorist aliens. 

Sec. 602. Detention of dangerous aliens. 

Sec. 603. Increase in criminal penalties. 

Sec. 604. Precluding admissibility of aggravated felons and other criminals. 

Sec. 605. Precluding refugee or asylee adjustment of status for aggravated felonies. 

Sec. 606. Removing drunk drivers. 

Sec. 607. Designated county law enforcement assistance program. 

Sec. 608. Rendering inadmissible and deportable aliens participating in criminal street gangs; detention; ineligibility from protection from removal and asylum. 

Sec. 609. Naturalization reform. 

Sec. 610. Expedited removal for aliens inadmissible on criminal or security grounds. 

Sec. 611. Technical correction for effective date in change in inadmissibility for terrorists under REAL ID Act. 

Sec. 612. Bar to good moral character. 

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Sec. 613. Strengthening definitions of ‘‘aggravated felony’’ and ‘‘conviction’’. 

Sec. 614. Deportability for criminal offenses. 

TITLE VII—EMPLOYMENT ELIGIBILITY VERIFICATION 

Sec. 701. Employment eligibility verification system. 

Sec. 702. Employment eligibility verification process. 

Sec. 703. Expansion of employment eligibility verification system to previously hired individuals and recruiting 

and referring. 

Sec. 704. Basic pilot program. 

Sec. 705. Hiring halls. 

Sec. 706. Penalties. 

Sec. 707. Report on Social Security card-based employment eligibility verification. 

Sec. 708. Effective date. 

TITLE VIII—IMMIGRATION LITIGATION ABUSE REDUCTION 

Sec. 801. Board of Immigration Appeals removal order authority. 

Sec. 802. Judicial review of visa revocation. 

Sec. 803. Reinstatement. 

Sec. 804. Withholding of removal. 

Sec. 805. Certificate of reviewability. 

Sec. 806. Waiver of rights in nonimmigrant visa issuance. 

SEC. 2. STATE DEFINED. 

In titles I, III, IV, and V of this Act, the term ‘‘State’’ has the meaning given 

it in section 2(14) of the Homeland Security Act of 2002 (6 U.S.C. 101(14)). 

SEC. 3. SENSE OF CONGRESS ON SETTING A MANAGEABLE LEVEL OF IMMIGRATION. 

It is the sense of Congress that the immigration and naturalization policy shall 

be designed to enhance the economic, social and cultural well-being of the United 

States of America. 

TITLE I—SECURING UNITED STATES BORDERS 

SEC. 101. ACHIEVING OPERATIONAL CONTROL ON THE BORDER. 

(a) IN GENERAL.—The Secretary of Homeland Security shall take all actions the 

Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the 

United States, to include the following— 

(1) systematic surveillance of the international land and maritime borders 

of the United States through more effective use of personnel and technology, 

such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras; 

(2) physical infrastructure enhancements to prevent unlawful entry by 

aliens into the United States and facilitate access to the international land and 

maritime borders by United States Customs and Border Protection, such as additional checkpoints, all weather access roads, and vehicle barriers; 

(3) hiring and training as expeditiously as possible additional Border Patrol 

agents authorized under section 5202 of the Intelligence Reform and Terrorism 

Prevention Act of 2004 (Public Law 108–458); and 

(4) increasing deployment of United States Customs and Border Protection 

personnel to areas along the international land and maritime borders of the 

United States where there are high levels of unlawful entry by aliens and other 

areas likely to be impacted by such increased deployment. 

(b) OPERATIONAL CONTROL DEFINED.—In this section, the term ‘‘operational control’’ means the prevention of the entry into the United States of terrorists, other 

unlawful aliens, instruments of terrorism, narcotics, and other contraband. 

SEC. 102. NATIONAL STRATEGY FOR BORDER SECURITY. 

(a) SURVEILLANCE PLAN.—Not later than six months after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the appropriate congressional committees a comprehensive plan for the systematic surveillance of the international land and maritime borders of the United States. The plan 

shall include the following: 

(1) An assessment of existing technologies employed on such borders. 

(2) A description of whether and how new surveillance technologies will be 

compatible with existing surveillance technologies. 

(3) A description of how the United States Customs and Border Protection 

is working, or is expected to work, with the Directorate of Science and Technology of the Department of Homeland Security to identify and test surveillance 

technology. 

(4) A description of the specific surveillance technology to be deployed. 

(5) The identification of any obstacles that may impede full implementation 

of such deployment. 

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(6) A detailed estimate of all costs associated with the implementation of 

such deployment and continued maintenance of such technologies. 

(7) A description of how the Department of Homeland Security is working 

with the Federal Aviation Administration on safety and airspace control issues 

associated with the use of unmanned aerial vehicles in the National Airspace 

System. 

(b) NATIONAL STRATEGY FOR BORDER SECURITY.—Not later than one year after 

the date of the enactment of this Act, the Secretary of Homeland Security, in consultation with the heads of other appropriate Federal agencies, shall submit to the 

appropriate congressional committees a National Strategy for Border Security to 

achieve operational control over all ports of entry into the United States and the 

international land and maritime borders of the United States. The Secretary shall 

update the Strategy as needed and shall submit to the Committee on Homeland Security of the House of Representatives, not later than 30 days after each such update, the updated Strategy. The National Strategy for Border Security shall include 

the following: 

(1) The implementation timeline for the surveillance plan described in subsection (a). 

(2) An assessment of the threat posed by terrorists and terrorist groups 

that may try to infiltrate the United States at points along the international 

land and maritime borders of the United States. 

(3) A risk assessment of all ports of entry to the United States and all portions of the international land and maritime borders of the United States with 

respect to— 

(A) preventing the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States; 

and 

(B) protecting critical infrastructure at or near such ports of entry or 

borders. 

(4) An assessment of the most appropriate, practical, and cost-effective 

means of defending the international land and maritime borders of the United 

States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities. 

(5) An assessment of staffing needs for all border security functions, taking 

into account threat and vulnerability information pertaining to the borders and 

the impact of new security programs, policies, and technologies. 

(6) A description of the border security roles and missions of Federal, State, 

regional, local, and tribal authorities, and recommendations with respect to how 

the Department of Homeland Security can improve coordination with such authorities, to enable border security enforcement to be carried out in an efficient 

and effective manner. 

(7) A prioritization of research and development objectives to enhance the 

security of the international land and maritime borders of the United States. 

(8) A description of ways to ensure that the free flow of legitimate travel 

and commerce of the United States is not diminished by efforts, activities, and 

programs aimed at securing the international land and maritime borders of the 

United States. 

(9) An assessment of additional detention facilities and bed space needed 

to detain unlawful aliens apprehended at United States ports of entry or along 

the international land borders of the United States in accordance with the National Strategy for Border Security required under this subsection and the mandatory detention requirement described in section 401 of this Act. 

(10) A description of how the Secretary shall ensure accountability and performance metrics within the appropriate agencies of the Department of Homeland Security responsible for implementing the border security measures determined necessary upon completion of the National Strategy for Border Security. 

(11) A timeline for the implementation of the additional security measures 

determined necessary as part of the National Strategy for Border Security, including a prioritization of security measures, realistic deadlines for addressing 

the security and enforcement needs, and resource estimates and allocations. 

(c) CONSULTATION.—In creating the National Strategy for Border Security described in subsection (b), the Secretary shall consult with— 

(1) State, local, and tribal authorities along the international land and maritime borders of the United States; and 

(2) an appropriate cross-section of private sector and nongovernmental organizations with relevant expertise. 

(d) PRIORITY OF NATIONAL STRATEGY.—The National Strategy for Border Security described in subsection (b) shall be the controlling document for security and 

5 

enforcement efforts related to securing the international land and maritime borders 

of the United States. 

(e) IMMEDIATE ACTION.—Nothing in this section shall be construed to relieve the 

Secretary of the responsibility to take all actions necessary and appropriate to 

achieve and maintain operational control over the entire international land and 

maritime borders of the United States pursuant to section 101 of this Act or any 

other provision of law. 

(f) REPORTING OF IMPLEMENTING LEGISLATION.—After submittal of the National 

Strategy for Border Security described in subsection (b) to the Committee on Homeland Security of the House of Representatives, such Committee shall promptly report to the House legislation authorizing necessary security measures based on its 

evaluation of the National Strategy for Border Security. 

(g) APPROPRIATE CONGRESSIONAL COMMITTEE.—For purposes of this title, the 

term ‘‘appropriate congressional committee’’ has the meaning given it in section 2(2) 

of the Homeland Security Act of 2002 (6 U.S.C. 101(2)). 

SEC. 103. IMPLEMENTATION OF CROSS-BORDER SECURITY AGREEMENTS. 

(a) IN GENERAL.—Not later than six months after the date of the enactment of 

this Act, the Secretary of Homeland Security shall submit to the appropriate congressional committees (as defined in section 102(g)) a report on the implementation 

of the cross-border security agreements signed by the United States with Mexico 

and Canada, including recommendations on improving cooperation with such countries to enhance border security. 

(b) UPDATES.—The Secretary shall regularly update the Committee on Homeland Security of the House of Representatives concerning such implementation. 

SEC. 104. BIOMETRIC DATA ENHANCEMENTS. 

Not later than October 1, 2006, the Secretary of Homeland Security shall— 

(1) in consultation with the Attorney General, enhance connectivity between 

the IDENT and IAFIS fingerprint databases to ensure more expeditious data 

searches; and 

(2) in consultation with 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. 

1221 note). 

SEC. 105. ONE FACE AT THE BORDER INITIATIVE. 

Not later than 90 days after the date of the enactment of this Act, the Secretary 

of Homeland Security shall submit to Congress a report— 

(1) describing the tangible and quantifiable benefits of the One Face at the 

Border Initiative established by the Department of Homeland Security; 

(2) identifying goals for and challenges to increased effectiveness of the One 

Face at the Border Initiative; 

(3) providing a breakdown of the number of inspectors who were— 

(A) personnel of the United States Customs Service before the date of 

the establishment of the Department of Homeland Security; 

(B) personnel of the Immigration and Naturalization Service before the 

date of the establishment of the Department; 

(C) personnel of the Department of Agriculture before the date of the 

establishment of the Department; or 

(D) hired after the date of the establishment of the Department; 

(4) describing the training time provided to each employee on an annual 

basis for the various training components of the One Face at the Border Initiative; and 

(5) outlining the steps taken by the Department to ensure that expertise 

is retained with respect to customs, immigration, and agriculture inspection 

functions under the One Face at the Border Initiative. 

SEC. 106. SECURE COMMUNICATION. 

The Secretary of Homeland Security shall, as expeditiously as practicable, develop and implement a plan to ensure clear and secure two-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; 

(3) between Border Patrol agents and residents in remote areas along the 

international land border who do not have mobile communications, as the Secretary determines necessary; and 

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(4) between all appropriate Department of Homeland Security border security agencies and State, local, and tribal law enforcement agencies. 

SEC. 107. PORT OF ENTRY INSPECTION PERSONNEL. 

In each of fiscal years 2007 through 2010, the Secretary of Homeland Security 

shall, subject to the availability of appropriations, increase by not less than 250 the 

number of positions for full-time active duty port of entry inspectors. There are authorized to be appropriated to the Secretary such sums as may be necessary for each 

such fiscal year to hire, train, equip, and support such additional inspectors under 

this section. 

SEC. 108. CANINE DETECTION TEAMS. 

In each of fiscal years 2007 through 2011, the Secretary of Homeland Security 

shall, subject to the availability of appropriations, increase by not less than 25 percent above the number of such positions for which funds were allotted for the preceding fiscal year the number of trained detection canines for use at United States 

ports of entry and along the international land and maritime borders of the United 

States. 

SEC. 109. SECURE BORDER INITIATIVE FINANCIAL ACCOUNTABILITY. 

(a) IN GENERAL.—The Inspector General of the Department of Homeland Security shall review each contract action related to the Department’s Secure Border Initiative having a value greater than $20,000,000, to determine whether each such action fully complies with applicable cost requirements, performance objectives, program milestones, inclusion of small, minority, and women-owned business, and 

timelines. The Inspector General shall complete a review under this subsection with 

respect to a contract action— 

(1) not later than 60 days after the date of the initiation of the action; and 

(2) upon the conclusion of the performance of the contract. 

(b) REPORT BY INSPECTOR GENERAL.—Upon completion of each review described 

in subsection (a), the Inspector General shall submit to the Secretary of Homeland 

Security a report containing the findings of the review, including findings regarding 

any cost overruns, significant delays in contract execution, lack of rigorous departmental contract management, insufficient departmental financial oversight, bundling that limits the ability of small business to compete, or other high risk business 

practices. 

(c) REPORT BY SECRETARY.—Not later than 30 days after the receipt of each report required under subsection (b), the Secretary of Homeland Security shall submit 

to the appropriate congressional committees (as defined in section 102(g)) a report 

on the findings of the report by the Inspector General and the steps the Secretary 

has taken, or plans to take, to address the problems identified in such report. 

(d) AUTHORIZATION OF APPROPRIATIONS.—In addition to amounts that are otherwise authorized to be appropriated to the Office of the Inspector General, an additional amount equal to at least five percent for fiscal year 2007, at least six percent 

for fiscal year 2008, and at least seven percent for fiscal year 2009 of the overall 

budget of the Office for each such fiscal year is authorized to be appropriated to the 

Office to enable the Office to carry out this section. 

SEC. 110. BORDER PATROL TRAINING CAPACITY REVIEW. 

(a) IN GENERAL.—The Comptroller General of the United States shall conduct 

a review of the basic training provided to Border Patrol agents by the Department 

of Homeland Security to ensure that such training is provided as efficiently and 

cost-effectively as possible. 

(b) COMPONENTS OF REVIEW.—The review under subsection (a) shall include the 

following components: 

(1) An evaluation of the length and content of the basic training curriculum 

provided to new Border Patrol agents by the Federal Law Enforcement Training 

Center, including a description of how the curriculum has changed since September 11, 2001. 

(2) A review and a detailed breakdown of the costs incurred by United 

States Customs and Border Protection and the Federal Law Enforcement Training Center to train one new Border Patrol agent. 

(3) A comparison, based on the review and breakdown under paragraph (2) 

of the costs, effectiveness, scope, and quality, including geographic characteristics, with other similar law enforcement training programs provided by State 

and local agencies, non-profit organizations, universities, and the private sector. 

(4) An evaluation of whether and how utilizing comparable non-Federal 

training programs, proficiency testing to streamline training, and long-distance 

learning programs may affect— 

7 

(A) the cost-effectiveness of increasing the number of Border Patrol 

agents trained per year and reducing the per agent costs of basic training; 

and 

(B) the scope and quality of basic training needed to fulfill the mission 

and duties of a Border Patrol agent. 

SEC. 111. AIRSPACE SECURITY MISSION IMPACT REVIEW. 

Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security 

of the House of Representatives a report detailing the impact the airspace security 

mission in the National Capital Region (in this section referred to as the ‘‘NCR’’) 

will have on the ability of the Department of Homeland Security to protect the 

international land and maritime borders of the United States. Specifically, the report shall address: 

(1) The specific resources, including personnel, assets, and facilities, devoted or planned to be devoted to the NCR airspace security mission, and from 

where those resources were obtained or are planned to be obtained. 

(2) An assessment of the impact that diverting resources to support the 

NCR mission has or is expected to have on the traditional missions in and 

around the international land and maritime borders of the United States. 

SEC. 112. REPAIR OF PRIVATE INFRASTRUCTURE ON BORDER. 

(a) IN GENERAL.—Subject to the amount appropriated in subsection (d) of this 

section, the Secretary of Homeland Security shall reimburse property owners for 

costs associated with repairing damages to the property owners’ private infrastructure constructed on a United States Government right-of-way delineating the international land border when such damages are— 

(1) the result of unlawful entry of aliens; and 

(2) confirmed by the appropriate personnel of the Department of Homeland 

Security and submitted to the Secretary for reimbursement. 

(b) VALUE OF REIMBURSEMENTS.—Reimbursements for submitted damages as 

outlined in subsection (a) shall not exceed the value of the private infrastructure 

prior to damage. 

(c) REPORTS.—Not later than six months after the date of the enactment of this 

Act and every subsequent six months until the amount appropriated for this section 

is expended in its entirety, the Secretary of Homeland Security shall submit to the 

Committee on Homeland Security of the House of Representatives a report that details the expenditures and circumstances in which those expenditures were made 

pursuant to this section. 

(d) AUTHORIZATION OF APPROPRIATIONS.—There shall be authorized to be appropriated an initial $50,000 for each fiscal year to carry out this section. 

SEC. 113. BORDER PATROL UNIT FOR VIRGIN ISLANDS. 

Not later than September 30, 2006, the Secretary of Homeland Security shall 

establish at least one Border Patrol unit for the Virgin Islands of the United States. 

SEC. 114. REPORT ON PROGRESS IN TRACKING TRAVEL OF CENTRAL AMERICAN GANGS 

ALONG INTERNATIONAL BORDER. 

Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall report to the Committee on Homeland Security 

of the House of Representatives on the progress of the Department of Homeland Security in tracking the travel of Central American gangs across the international 

land border of the United States and Mexico. 

SEC. 115. COLLECTION OF DATA. 

Beginning on October 1, 2006, the Secretary of Homeland Security shall annually compile data on the following categories of information: 

(1) The number of unauthorized aliens who require medical care taken into 

custody by Border Patrol officials. 

(2) The number of unauthorized aliens with serious injuries or medical conditions Border Patrol officials encounter, and refer to local hospitals or other 

health facilities. 

(3) The number of unauthorized aliens with serious injuries or medical conditions who arrive at United States ports of entry and subsequently are admitted into the United States for emergency medical care, as reported by United 

States Customs and Border Protection. 

(4) The number of unauthorized aliens described in paragraphs (2) and (3) 

who subsequently are taken into custody by the Department of Homeland Security after receiving medical treatment. 

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SEC. 116. DEPLOYMENT OF RADIATION DETECTION PORTAL EQUIPMENT AT UNITED STATES 

PORTS OF ENTRY. 

(a) DEPLOYMENT.—Not later than one year after the date of the enactment of 

this Act, the Secretary of Homeland Security shall deploy radiation portal monitors 

at all United States ports of entry and facilities as determined by the Secretary to 

facilitate the screening of all inbound cargo for nuclear and radiological material. 

(b) REPORT.—Not later than 180 days after the date of the enactment of this 

Act, the Secretary shall submit to the Committee on Homeland Security of the 

House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the Department’s progress toward carrying 

out the deployment described in subsection (a). 

(c) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated 

to the Secretary to carry out subsection (a) such sums as may be necessary for each 

of fiscal years 2006 and 2007. 

SEC. 117. CONSULTATION WITH BUSINESSES AND FIRMS. 

With respect to the Secure Border Initiative and for the purposes of strengthening security along the international land and maritime borders of the United 

States, the Secretary of Homeland Security shall conduct outreach to and consult 

with members of the private sector, including business councils, associations, and 

small, minority-owned, women-owned, and disadvantaged businesses to— 

(1) identify existing and emerging technologies, best practices, and business 

processes; 

(2) maximize economies of scale, cost-effectiveness, systems integration, and 

resource allocation; and 

(3) identify the most appropriate contract mechanisms to enhance financial 

accountability and mission effectiveness of border security programs. 

TITLE II—COMBATTING ALIEN SMUGGLING 

AND ILLEGAL ENTRY AND PRESENCE 

SEC. 201. DEFINITION OF AGGRAVATED FELONY. 

(a) IN GENERAL.—Section 101(a)(43) of the Immigration and Nationality Act (8 

U.S.C. 1101(a)(43)) is amended— 

(1) in subparagraph (N), by striking ‘‘paragraph (1)(A) or (2) of section 

274(a) (relating to alien smuggling)’’ and inserting ‘‘section 274(a)’’ and by adding a semicolon at the end; 

(2) 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 section 276 for which the term of imprisonment was at least one year’’; 

(3) in subparagraph (U), by inserting before ‘‘an attempt’’ the following: ‘‘soliciting, aiding, abetting, counseling, commanding, inducing, procuring or’’; and 

(4) by striking all that follows subparagraph (U) and inserting the following: 

‘‘The term applies— 

‘‘(i) to an offense described in this paragraph whether in violation of 

Federal or State law and applies 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; 

‘‘(ii) even if the length of the term of imprisonment is based on recidivist or other enhancements; 

‘‘(iii) to an offense described in this paragraph even if the statute setting forth the offense of conviction sets forth other offenses not described 

in this paragraph, unless the alien affirmatively shows, by a preponderance 

of evidence and using public records related to the conviction, including 

court records, police records and presentence reports, that the particular 

facts underlying the offense do not satisfy the generic definition of that offense; and 

‘‘(iv) regardless of whether the conviction was entered before, on, or 

after September 30, 1996, and notwithstanding any other provision of law 

(including any effective date).’’. 

(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall apply to 

offenses that occur before, on, or after the date of the enactment of this Act. 

SEC. 202. ALIEN SMUGGLING AND RELATED OFFENSES. 

(a) IN GENERAL.—Section 274 of the Immigration and Nationality Act (8 U.S.C. 

1324) is amended to read as follows: 

9 

‘‘ALIEN SMUGGLING AND RELATED OFFENSES

‘‘SEC. 274. (a) CRIMINAL OFFENSES AND PENALTIES.— 

‘‘(1) PROHIBITED ACTIVITIES.—Whoever— 

‘‘(A) assists, encourages, directs, or induces a person to come to or enter 

the United States, or to attempt to come to or enter the United States, 

knowing or in reckless disregard of the fact that such person is an alien 

who lacks lawful authority to come to or enter the United States; 

‘‘(B) assists, encourages, directs, or induces a person to come to or enter 

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, regardless 

of whether such person has official permission or lawful authority to be in 

the United States, knowing or in reckless disregard of the fact that such 

person is an alien; 

‘‘(C) assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain 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 or remain in the United 

States; 

‘‘(D) 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, where the transportation or 

movement will aid or further in any manner the person’s illegal entry into 

or illegal presence in the United States; 

‘‘(E) 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; 

‘‘(F) 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 one country to 

another or on the high seas, under circumstances in which the person is 

in fact seeking to enter the United States without official permission or 

lawful authority; or 

‘‘(G) conspires or attempts to commit any of the preceding acts, 

shall be punished as provided in paragraph (2), regardless of any official action 

which may later be taken with respect to such alien. 

‘‘(2) CRIMINAL PENALTIES.—A person who violates the provisions of paragraph (1) shall— 

‘‘(A) except as provided in subparagraphs (D) through (H), in the case 

where the offense was not committed for commercial advantage, profit, or 

private financial gain, be imprisoned for not more than 5 years, or fined 

under title 18, United States Code, or both; 

‘‘(B) except as provided in subparagraphs (C) through (H), where the 

offense was committed for commercial advantage, profit, or private financial 

gain— 

‘‘(i) in the case of a first violation of this subparagraph, be imprisoned for not more than 20 years, or fined under title 18, United States 

Code, or both; and 

‘‘(ii) for any subsequent violation, be imprisoned for not less than 

3 years nor more than 20 years, or fined under title 18, United States 

Code, or both; 

‘‘(C) in the case where the offense was committed for commercial advantage, profit, or private financial gain and involved 2 or more aliens other 

than the offender, be imprisoned for not less than 3 nor more than 20 

years, or fined under title 18, United States Code, or both; 

‘‘(D) in the case where the offense furthers or aids the commission of 

any other offense against the United States or any State, which offense is 

punishable by imprisonment for more than 1 year, be imprisoned for not 

less than 5 nor more than 20 years, or fined under title 18, United States 

Code, or both; 

‘‘(E) in the case where any participant in the offense created a substantial risk of death or serious bodily injury to another person, including— 

‘‘(i) transporting a person in an engine compartment, storage compartment, or other confined space; 

‘‘(ii) transporting a person at an excessive speed or in excess of the 

rated capacity of the means of transportation; or 

‘‘(iii) transporting or harboring a person in a crowded, dangerous, 

or inhumane manner, 

10 

be imprisoned not less than 5 nor more than 20 years, or fined under title 

18, United States Code, or both; 

‘‘(F) in the case where the offense caused serious bodily injury (as defined in section 1365 of title 18, United States Code, including any conduct 

that would violate sections 2241 or 2242 of title 18, United States Code, if 

the conduct occurred in the special maritime and territorial jurisdiction of 

the United States) to any person, be imprisoned for not less than 7 nor 

more than 30 years, or fined under title 18, United States Code, or both; 

‘‘(G) in the case where the offense involved an alien who the offender 

knew or had reason to believe was an alien— 

‘‘(i) engaged in terrorist activity (as defined in section 212(a)(3)(B)); or ‘‘(ii) intending to engage in such terrorist activity, 

be imprisoned for not less than 10 nor more than 30 years, or fined under 

title 18, United States Code, or both; and 

‘‘(H) in the case where the offense caused or resulted in the death of 

any person, be punished by death or imprisoned for not less than 10 years, 

or any term of years, or for life, or fined under title 18, United States Code, 

or both. 

‘‘(3) EXTRATERRITORIAL JURISDICTION.—There is extraterritorial Federal jurisdiction over the offenses described in this subsection. 

‘‘(b) EMPLOYMENT OF UNAUTHORIZED ALIENS.— 

‘‘(1) IN GENERAL.—Any person who, during any 12-month period, knowingly 

hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in paragraph (2), shall be fined under title 18, 

United States Code, imprisoned for not more than 5 years, or both. 

‘‘(2) ALIEN DESCRIBED.—A alien described in this paragraph is an alien 

who— 

‘‘(A) is an unauthorized alien (as defined in section 274A(h)(3)); and 

‘‘(B) has been brought into the United States in violation of subsection 

(a). 

‘‘(c) SEIZURE AND FORFEITURE.— 

‘‘(1) IN GENERAL.—Any property, real or personal, that has been 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, 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. 

‘‘(d) AUTHORITY TO ARREST.—No officer or person shall have authority to make 

any arrests for a violation of any provision of this section except officers and employees designated by the Secretary of Homeland Security, either individually or as a 

member of a class, and all other officers whose duty it is to enforce criminal laws. 

‘‘(e) ADMISSIBILITY OF EVIDENCE.— 

‘‘(1) PRIMA FACIE EVIDENCE IN DETERMINATIONS OF VIOLATIONS.—Notwithstanding any provision of the Federal Rules of Evidence, in determining whether a violation of subsection (a) has occurred, any of the following shall be prima 

facie evidence that an alien involved in the violation lacks lawful authority to 

come to, enter, reside, remain, or be in the United States or that such alien had 

come to, entered, resided, remained or been present in the United States in violation of law: 

‘‘(A) Any order, finding, or determination concerning the alien’s status 

or lack thereof made by a federal judge or administrative adjudicator (including an immigration judge or an immigration officer) during any judicial 

or administrative proceeding authorized under the immigration laws or regulations prescribed thereunder. 

‘‘(B) An official record of the Department of Homeland Security, Department of Justice, or the Department of State concerning the alien’s status 

or lack thereof. 

‘‘(C) Testimony by an immigration officer having personal knowledge of 

the facts concerning the alien’s status or lack thereof. 

‘‘(2) VIDEOTAPED 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 

11 

be admitted into evidence in an action brought for that violation if the witness 

was available for cross examination at the deposition and the deposition otherwise complies with the Federal Rules of Evidence. 

‘‘(f) DEFINITIONS.—For purposes of this section: 

‘‘(1) The term ‘lawful authority’ means permission, authorization, or license 

that is expressly provided for in the immigration laws of the United States or 

the regulations prescribed thereunder. Such term does not include any such authority secured by fraud or otherwise obtained in violation of law, nor does it 

include authority that has been sought but not approved. No alien shall be 

deemed to have lawful authority to come to, enter, reside, remain, or be in the 

United States if such coming to, entry, residence, remaining, or presence was, 

is, or would be in violation of law. 

‘‘(2) 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 or to which the alien is traveling or moving.’’. 

(b) CLERICAL AMENDMENT.—The item relating to section 274 in the table of contents of such Act is amended to read as follows: 

‘‘Sec. 274. Alien smuggling and related offenses.’’. 

SEC. 203. IMPROPER ENTRY BY, OR PRESENCE OF, ALIENS. 

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

(1) in the section heading, by inserting ‘‘UNLAWFUL PRESENCE;’’ after ‘‘IMPROPER TIME OR PLACE;’’; 

(2) in subsection (a)— 

(A) by striking ‘‘Any alien’’ and inserting ‘‘Except as provided in subsection (b), any alien’’; 

(B) by striking ‘‘or’’ before (3); 

(C) by inserting after ‘‘concealment of a material fact,’’ the following: 

‘‘or (4) is otherwise present in the United States in violation of the immigration laws or the regulations prescribed thereunder,’’; and 

(D) by striking ‘‘6 months’’ and inserting ‘‘one year and a day’’; 

(3) in subsection (c)— 

(A) by striking ‘‘5 years’’ and inserting ‘‘10 years’’; and 

(B) by adding at the end the following: ‘‘An offense under this subsection continues until the fraudulent nature of the marriage is discovered 

by an immigration officer.’’; 

(4) in subsection (d)— 

(A) by striking ‘‘5 years’’ and inserting ‘‘10 years’’; 

(B) by adding at the end the following: ‘‘An offense under this subsection continues until the fraudulent nature of the commercial enterprise 

is discovered by an immigration officer.’’; and 

(5) by adding at the end the following new subsections: 

‘‘(e)(1) Any alien described in paragraph (2)— 

‘‘(A) shall be fined under title 18, United States Code, imprisoned not more 

than 10 years, or both, if the offense described in such paragraph was committed subsequent to a conviction or convictions for commission of three or more 

misdemeanors involving drugs, crimes against the person, or both, or a felony 

(other than an aggravated felony); or 

‘‘(B) shall be fined under title 18, United States Code, imprisoned not more 

than 20 years, or both, if such offense was committed subsequent to a conviction 

for commission of an aggravated felony. 

‘‘(2) An alien described in this paragraph is an alien who— 

‘‘(A) enters or attempts to enter the United States at any time or place 

other than as designated by immigration officers; 

‘‘(B) eludes examination or inspection by immigration officers; 

‘‘(C) attempts to enter or obtains entry to the United States by a willfully 

false or misleading representation or the willful concealment of a material fact; 

or 

‘‘(D) is otherwise present in the United States in violation of the immigration laws or the regulations prescribed thereunder. 

‘‘(3) The prior convictions in subparagraph (A) or (B) of paragraph (1) are elements of those crimes and the penalties in those subparagraphs shall apply only in 

cases in which the conviction (or convictions) that form the basis for the additional 

penalty are alleged in the indictment or information and are proven beyond a reasonable doubt at trial or admitted by the defendant in pleading guilty. Any admissible evidence may be used to show that the prior conviction is an aggravated felony 

or other qualifying crime, and the criminal trial for a violation of this section shall 

not be bifurcated. 

12 

‘‘(4) An offense under subsection (a) or paragraph (1) of this subsection continues until the alien is discovered within the United States by immigration officers. 

‘‘(f) For purposes of this section, the term ‘attempts to enter’ refers to the general intent of the alien to enter the United States and does not refer to the intent 

of the alien to violate the law.’’. 

SEC. 204. REENTRY OF REMOVED ALIENS. 

Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended— 

(1) in subsection (a)— 

(A) in paragraph (2), by striking all that follows ‘‘United States’’ the 

first place it appears and inserting a comma; 

(B) in the matter following paragraph (2), by striking ‘‘imprisoned not 

more than 2 years,’’ and inserting ‘‘imprisoned for a term of not less than 

1 year and not more than 2 years,’’; 

(C) by adding at the end the following: ‘‘It shall be an affirmative defense to an offense under this subsection that (A) prior to an alien’s reembarkation at a place outside the United States or an alien’s application 

for admission from foreign contiguous territory, the Secretary of Homeland 

Security has expressly consented to the alien’s reapplying for admission; or 

(B) with respect to an alien previously denied admission and removed, such 

alien was not required to obtain such advance consent under this Act or 

any prior Act.’’; 

(2) in subsection (b)— 

(A) in paragraph (1), by striking ‘‘imprisoned not more than 10 years,’’ 

and insert ‘‘imprisoned for a term of not less than 5 years and not more 

than 10 years,’’; 

(B) in paragraph (2), by striking ‘‘imprisoned not more than 20 years,’’ 

and insert ‘‘imprisoned for a term of not less than 10 years and not more 

than 20 years,’’; 

(C) in paragraph (3), by striking ‘‘. or’’ and inserting ‘‘; or’’; 

(D) in paragraph (4), by striking ‘‘imprisoned for not more than 10 

years,’’ and insert ‘‘imprisoned for a term of not less than 5 years and not 

more than 10 years,’’; and 

(E) by adding at the end the following: ‘‘The prior convictions in paragraphs (1) and (2) are elements of enhanced crimes and the penalties under 

such paragraphs shall apply only where the conviction (or convictions) that 

form the basis for the additional penalty are alleged in the indictment or 

information and are proven beyond a reasonable doubt at trial or admitted 

by the defendant in pleading guilty. Any admissible evidence may be used 

to show that the prior conviction is a qualifying crime and the criminal trial 

for a violation of either such paragraph shall not be bifurcated.’’; 

(3) in subsections (b)(3), (b)(4), and (c), by striking ‘‘Attorney General’’ and 

inserting ‘‘Secretary of Homeland Security’’ each place it appears; 

(4) in subsection (c), by striking ‘‘242(h)(2)’’ and inserting ‘‘241(a)(4)’’; and 

(5) by adding at the end the following new subsection: 

‘‘(e) For purposes of this section, the term ‘attempts to enter’ refers to the general intent of the alien to enter the United States and does not refer to the intent 

of the alien to violate the law.’’. 

SEC. 205. MANDATORY SENTENCING RANGES FOR PERSONS AIDING OR ASSISTING CERTAIN 

REENTERING ALIENS. 

Section 277 of the Immigration and Nationality Act (8 U.S.C. 1327) is amended— 

(1) by striking ‘‘Any person’’ and inserting ‘‘(a) Subject to subsection (b), any 

person’’; and 

(2) by adding at the end the following: 

‘‘(b)(1) Any person who knowingly aids or assists any alien violating section 

276(b) to reenter the United States, or who connives or conspires with any person 

or persons to allow, procure, or permit any such alien to reenter the United States, 

shall be fined under title 18, United States Code, imprisoned for a term imposed 

under paragraph (2), or both. 

‘‘(2) The term of imprisonment imposed under paragraph (1) shall be within the 

range to which the reentering alien is subject under section 276(b).’’. 

SEC. 206. 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— 

(1) in paragraphs (1)(A) and (1)(D)(ii), by inserting ‘‘, alien smuggling 

crime,’’ after ‘‘crime of violence’’ each place it appears; and 

13 

(2) by adding at the end the following new paragraph: 

‘‘(6) For purposes of 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, or 1328).’’. 

SEC. 207. CLARIFYING CHANGES. 

(a) EXCLUSION BASED ON FALSE CLAIM OF NATIONALITY.— (1) IN GENERAL.—Section 212(a)(6)(C)(ii) of the Immigration and Nationality 

Act (8 U.S.C. 1182(a)(6)(C)(ii)) is amended— 

(A) in the heading, by inserting ‘‘OR NATIONALITY’’ after ‘‘CITIZENSHIP’’; 

and 

(B) by inserting ‘‘or national’’ after ‘‘citizen’’ each place it appears. 

(2) EFFECTIVE DATE.—The amendments made by paragraph (1) shall take 

effect on the date of the enactment of this Act and shall apply to acts occurring 

before, on, or after such date. 

(b) SHARING OF INFORMATION.—Section 290(b) of such Act (8 U.S.C. 1360(b)) is 

amended— 

(1) by inserting ‘‘, or as to any person seeking any benefit or privilege under 

the immigration laws,’’ after ‘‘United States’’; 

(2) by striking ‘‘Service’’ and inserting ‘‘Secretary of Homeland Security’’; 

and 

(3) by striking ‘‘Attorney General’’ and inserting ‘‘Secretary’’. 

(c) EXCEPTIONS AUTHORITY.—Section 212(a)(3)(B)(ii) of such Act (8 U.S.C. 

1182(a)(3)(B)(ii)) is amended by striking ‘‘Subclause (VII)’’ and inserting ‘‘Subclause 

(IX)’’. 

SEC. 208. VOLUNTARY DEPARTURE REFORM. 

(a) ENCOURAGING ALIENS TO DEPART VOLUNTARILY.— (1) AUTHORITY.—Subsection (a) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended— 

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

‘‘(1) IN LIEU OF REMOVAL PROCEEDINGS.—The Secretary of Homeland Security may permit an alien voluntarily to depart the United States at the alien’s 

own expense under this subsection, in lieu of being subject to proceedings under 

section 240, if the alien is not described in section 237(a)(2)(A)(iii) or section 

237(a)(4).’’; 

(B) by striking paragraph (3); 

(C) by redesignating paragraph (2) as paragraph (3); 

(D) by inserting after paragraph (1) the following new paragraph: 

‘‘(2) PRIOR TO THE CONCLUSION OF REMOVAL PROCEEDINGS.—After removal 

proceedings under section 240 are initiated, the Attorney General may permit 

an alien voluntarily to depart the United States at the alien’s own expense 

under this subsection, prior to the conclusion of such proceedings before an immigration judge, if the alien is not described in section 237(a)(2)(A)(iii) or section 237(a)(4).’’; and 

(E) in paragraph (4), by striking ‘‘paragraph (1)’’ and inserting ‘‘paragraphs (1) and (2)’’. 

(2) VOLUNTARY DEPARTURE PERIOD.—Such section is further amended— 

(A) in subsection (a)(3), as redesignated by paragraph (1)(C)— 

(i) by amending subparagraph (A) to read as follows: 

‘‘(A) IN LIEU OF REMOVAL.—Subject to subparagraph (C), permission to 

depart voluntarily under paragraph (1) shall not be valid for a period exceeding 120 days. The Secretary of Homeland Security may require an alien 

permitted to depart voluntarily 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) in subparagraph (B), by striking ‘‘subparagraphs (C) and (D)(ii)’’ 

and inserting ‘‘subparagraphs (D) and (E)(ii)’’; 

(iii) in subparagraphs (C) and (D), by striking ‘‘subparagraph (B)’’ 

and inserting ‘‘subparagraph (C)’’ each place it appears; 

(iv) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and 

(v) by inserting after subparagraph (A) the following new subparagraph: 

‘‘(B) PRIOR TO THE CONCLUSION OF REMOVAL PROCEEDINGS.—Permission 

to depart voluntarily under paragraph (2) shall not be valid for a period exceeding 60 days, and may be granted only after a finding that the alien has 

established that the alien has the means to depart the United States and 

intends to do so. An alien permitted to depart voluntarily under paragraph 

(2) must post a voluntary departure bond, in an amount necessary to enVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00017 Fmt 6659 Sfmt 6621 E:\HR\OC\HR345P1.XXX HR345P1
14 

sure that the alien will depart, to be surrendered upon proof that the alien 

has departed the United States within the time specified. An immigration 

judge may waive posting of a voluntary departure bond in individual cases 

upon a finding that the alien has presented compelling evidence that the 

posting of a bond will be a serious financial hardship and the alien has presented credible evidence that such a bond is unnecessary to guarantee timely departure.’’; and 

(B) in subsection (b)(2), by striking ‘‘60 days’’ and inserting ‘‘45 days’’. 

(3) VOLUNTARY DEPARTURE AGREEMENTS.—Subsection (c) of such section is 

amended to read as follows: 

‘‘(c) CONDITIONS ON VOLUNTARY DEPARTURE.— ‘‘(1) VOLUNTARY DEPARTURE AGREEMENT.—Voluntary departure will be 

granted only 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 in the exercise of discretion may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9). 

‘‘(3) FAILURE TO COMPLY WITH AGREEMENT AND EFFECT OF FILING TIMELY AP- PEAL.—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 a failure to 

timely post any required bond), the alien automatically becomes ineligible for 

the benefits of the agreement, subject to the penalties described in subsection 

(d), and subject to an alternate order of removal if voluntary departure was 

granted under subsection (a)(2) or (b). However, if an alien agrees to voluntary 

departure but later 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 thereof, but the alien may 

not again be granted voluntary departure while the alien remains in the United 

States.’’. 

(4) ELIGIBILITY.—Subsection (e) of such section is amended to read as follows: 

‘‘(e) ELIGIBILITY.— 

‘‘(1) PRIOR GRANT OF VOLUNTARY DEPARTURE.—An alien shall not be permitted to depart voluntarily under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily. 

‘‘(2) ADDITIONAL LIMITATIONS.—The Secretary of Homeland Security may by 

regulation limit eligibility or impose additional conditions for voluntary departure under subsection (a)(1) for any class or classes of aliens. The Secretary or 

Attorney General may by regulation limit eligibility or impose additional conditions for voluntary departure under subsection (a)(2) or (b) for any class or 

classes of aliens. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other 

habeas corpus provision, and section 1361 and 1651 of such title, no court may 

review any regulation issued under this subsection.’’. 

(b) AVOIDING DELAYS IN VOLUNTARY DEPARTURE.— 

(1) ALIEN’S OBLIGATION TO DEPART WITHIN THE TIME ALLOWED.—Subsection 

(c) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c), as 

amended by subsection (a), is further amended by adding at the end the following new paragraph: 

‘‘(4) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED.—Except as expressly 

agreed to by the Secretary of Homeland Security 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.’’. 

(2) NO TOLLING.—Subsection (f) of such section is amended by adding at the 

end the following new sentence: ‘‘Notwithstanding any other provision of law 

(statutory or nonstatutory), including section 2241 of title 28, United States 

Code, or any other habeas corpus provision, and section 1361 and 1651 of such 

title, no court shall have jurisdiction to affect, reinstate, enjoin, delay, stay, or 

toll the period allowed for voluntary departure under this section.’’. 

(c) PENALTIES FOR FAILURE TO DEPART VOLUNTARILY.— 

15 

(1) PENALTIES FOR FAILURE TO DEPART.—Subsection (d) of section 240B of 

the Immigration and Nationality Act (8 U.S.C. 229c) is amended to read as follows: 

‘‘(d) PENALTIES FOR FAILURE TO DEPART.—If an alien is permitted to depart voluntarily under this section and fails voluntarily to depart from the United States 

within the time period specified or otherwise violates the terms of a voluntary departure agreement, the following provisions apply: 

‘‘(1) CIVIL PENALTY.— 

‘‘(A) IN GENERAL.—The alien will be liable for a civil penalty of $3,000. 

‘‘(B) SPECIFICATION IN ORDER.—The order allowing voluntary departure 

shall specify the amount of the penalty, which shall be acknowledged by the 

alien on the record. 

‘‘(C) COLLECTION.—If the Secretary of Homeland Security 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. 

‘‘(D) INELIGIBILITY FOR BENEFITS.—An alien will be ineligible for any 

benefits under this title until any civil penalty under this subsection is 

paid. 

‘‘(2) INELIGIBILITY FOR RELIEF.—The alien will 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. 

‘‘(3) REOPENING.— 

‘‘(A) IN GENERAL.—Subject to subparagraph (B), the alien will be ineligible to reopen a final order of removal which took effect upon the alien’s 

failure to depart, or the alien’s violation of the conditions for voluntary departure, during the period described in paragraph (2). 

‘‘(B) EXCEPTION.—Subparagraph (A) does not preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection 

against torture. 

The order permitting the alien to depart voluntarily under this section shall inform the alien of the penalties under this subsection.’’. 

(2) IMPLEMENTATION OF EXISTING STATUTORY PENALTIES.—The Secretary of 

Homeland Security shall implement regulations to provide for the imposition 

and collection of penalties for failure to depart under section 240B(d) of the Immigration and Nationality Act, as amended by paragraph (1). 

(d) EFFECTIVE DATES.— 

(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 date of the enactment of this Act. 

(2) EXCEPTION.—The amendment made by subsection (b)(2) shall take effect 

on the date of the enactment of this Act and shall apply with respect to any 

petition for review which is entered on or after such date. 

SEC. 209. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED STATES 

UNLAWFULLY AND FROM UNLAWFULLY RETURNING TO THE UNITED STATES 

AFTER DEPARTING VOLUNTARILY. 

(a) INADMISSIBLE ALIENS.—Paragraph (9) of section 212(a) of the Immigration 

and Nationality Act (8 U.S.C. 1182(a)) is amended— 

(1) in subparagraph (A)(i), by striking ‘‘within 5 years of’’ and inserting ‘‘before, or within 5 years of,’’; and 

(2) in subparagraph (A)(ii) by striking ‘‘within 10 years of’’ and inserting 

‘‘before, or within 10 years of,’’. 

(b) FAILURE TO DEPART, APPLY FOR TRAVEL DOCUMENTS, OR APPEAR FOR REMOVAL OR CONSPIRACY TO PREVENT OR HAMPER DEPARTURE.—Section 274D of such 

Act (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 new subsection: 

‘‘(c) INELIGIBILITY FOR RELIEF.— 

‘‘(1) IN GENERAL.—Subject to paragraph (2), unless a timely motion to reopen is granted under section 240(c)(6), an alien described in subsection (a) 

shall be ineligible for any discretionary relief from removal pursuant to a motion to reopen during the time the alien remains in the United States and for 

a period of 10 years after the alien’s departure. 

16 

‘‘(2) EXCEPTION.—Paragraph (1) does not preclude a motion to reopen to 

seek withholding of removal under section 241(b)(3) or protection against torture.’’. 

(c) DETERRING ALIENS FROM UNLAWFULLY RETURNING TO THE UNITED STATES

AFTER DEPARTING VOLUNTARILY.—Section 275(a) of such Act (8 U.S.C. 1325(a)) is 

amended by inserting ‘‘or following an order of voluntary departure’’ after ‘‘a subsequent commission of any such offense’’. 

(d) EFFECTIVE DATES.— (1) IN GENERAL.—The amendments made by subsections (a) and (b) 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, whether the removal order was entered 

before, on, or after such date. 

(2) VOLUNTARY DEPARTURE.—The amendment made by subsection (c) shall 

take effect on the date of the enactment of this Act and shall apply with respect 

to conduct occurring on or after such date. 

SEC. 210. ESTABLISHMENT OF A SPECIAL TASK FORCE FOR COORDINATING AND DISTRIBUTING INFORMATION ON FRAUDULENT IMMIGRATION DOCUMENTS. 

(a) IN GENERAL.—The Secretary of Homeland Security shall establish a task 

force (to be known as the Task Force on Fraudulent Immigration Documents) to 

carry out the following: 

(1) Collect information from Federal, State, and local law enforcement agencies, and Foreign governments on the production, sale, and distribution of 

fraudulent documents intended to be used to enter or to remain in the United 

States unlawfully. 

(2) Maintain that information in a comprehensive database. 

(3) Convert the information into reports that will provide guidance for government officials on identifying fraudulent documents being used to enter or to 

remain in the United States unlawfully. 

(4) Develop a system for distributing these reports on an ongoing basis to 

appropriate Federal, State, and local law enforcement agencies. 

(b) DISTRIBUTION OF INFORMATION.—Distribute the reports to appropriate Federal, State, and local law enforcement agencies on an ongoing basis. 

TITLE III—BORDER SECURITY COOPERATION 

AND ENFORCEMENT 

SEC. 301. JOINT STRATEGIC PLAN FOR UNITED STATES BORDER SURVEILLANCE AND SUPPORT. 

(a) IN GENERAL.—The Secretary of Homeland Security and the Secretary of Defense shall develop a joint strategic plan to use the 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 

with the surveillance activities of the Department of Homeland Security conducted 

at or near the international land and maritime borders of the United States. 

(b) REPORT.—Not later than six months after the date of the enactment of this 

Act, the Secretary of Homeland Security and the Secretary of Defense shall submit 

to Congress a report containing— 

(1) a description of the use of Department of Defense equipment to assist 

with the surveillance by the Department of Homeland Security of the international land and maritime borders of the United States; 

(2) the joint strategic plan developed pursuant to subsection (a); 

(3) a description of the types of equipment and other support to be provided 

by the Department of Defense under the joint strategic plan during the one-year 

period beginning after submission of the report under this subsection; and 

(4) a description of how the Department of Homeland Security and the Department of Defense are working with the Department of Transportation on 

safety and airspace control issues associated with the use of unmanned aerial 

vehicles in the National Airspace System. 

(c) RULE OF CONSTRUCTION.—Nothing in this section shall be construed as altering or amending the prohibition on the use of any part of the Army or the Air Force 

as a posse comitatus under section 1385 of title 18, United States Code. 

SEC. 302. BORDER SECURITY ON PROTECTED LAND. 

(a) IN GENERAL.—The Secretary of Homeland Security, in consultation with the 

Secretary of the Interior, shall evaluate border security vulnerabilities on land directly adjacent to the international land border of the United States under the jurisVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00020 Fmt 6659 Sfmt 6621 E:\HR\OC\HR345P1.XXX HR345P1
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diction of the Department of the Interior related to the prevention of the entry of 

terrorists, other unlawful aliens, narcotics, and other contraband into the United 

States. 

(b) SUPPORT FOR BORDER SECURITY NEEDS.—Based on the evaluation conducted 

pursuant to subsection (a), the Secretary of Homeland Security shall provide appropriate border security assistance on land directly adjacent to the international land 

border of the United States under the jurisdiction of the Department of the Interior, 

its bureaus, and tribal entities. 

SEC. 303. BORDER SECURITY THREAT ASSESSMENT AND INFORMATION SHARING TEST AND 

EVALUATION EXERCISE. 

Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall design and carry out a national border security 

exercise for the purposes of— 

(1) involving officials from Federal, State, territorial, local, tribal, and international governments and representatives from the private sector; 

(2) testing and evaluating the capacity of the United States to anticipate, 

detect, and disrupt threats to the integrity of United States borders; and 

(3) testing and evaluating the information sharing capability among Federal, State, territorial, local, tribal, and international governments. 

SEC. 304. BORDER SECURITY ADVISORY COMMITTEE. 

(a) ESTABLISHMENT OF COMMITTEE.—Not later than one year after the date of 

the enactment of this Act, the Secretary of Homeland Security shall establish an 

advisory committee to be known as the Border Security Advisory Committee (in this 

section referred to as the ‘‘Committee’’). 

(b) DUTIES.—The Committee shall advise the Secretary on issues relating to 

border security and enforcement along the international land and maritime border 

of the United States. 

(c) MEMBERSHIP.—The Secretary shall appoint members to the Committee from 

the following: 

(1) State and local government representatives from States located along 

the international land and maritime borders of the United States. 

(2) Community representatives from such States. 

(3) Tribal authorities in such States. 

SEC. 305. PERMITTED USE OF HOMELAND SECURITY GRANT FUNDS FOR BORDER SECURITY 

ACTIVITIES. 

(a) REIMBURSEMENT.—The Secretary of Homeland Security may allow the recipient of amounts under a covered grant to use those amounts to reimburse itself 

for costs it incurs in carrying out any activity that— 

(1) relates to the enforcement of Federal laws aimed at preventing the unlawful entry of persons or things into the United States, including activities 

such as detecting or responding to such an unlawful entry or providing support 

to another entity relating to preventing such an unlawful entry; 

(2) is usually a Federal duty carried out by a Federal agency; and 

(3) is carried out under agreement with a Federal agency. 

(b) USE OF PRIOR YEAR FUNDS.—Subsection (a) shall apply to all covered grant 

funds received by a State, local government, or Indian tribe at any time on or after 

October 1, 2001. 

(c) COVERED GRANTS.—For purposes of subsection (a), the term ‘‘covered grant’’ 

means grants provided by the Department of Homeland Security to States, local 

governments, or Indian tribes administered under the following programs: 

(1) STATE HOMELAND SECURITY GRANT PROGRAM.—The State Homeland Security Grant Program of the Department, or any successor to such grant program. 

(2) URBAN AREA SECURITY INITIATIVE.—The Urban Area Security Initiative 

of the Department, or any successor to such grant program. 

(3) LAW ENFORCEMENT TERRORISM PREVENTION PROGRAM.—The Law Enforcement Terrorism Prevention Program of the Department, or any successor 

to such grant program. 

SEC. 306. CENTER OF EXCELLENCE FOR BORDER SECURITY. 

(a) ESTABLISHMENT.—The Secretary of Homeland Security shall establish a university-based Center of Excellence for Border Security following the merit-review 

processes and procedures and other limitations that have been established for selecting and supporting University Programs Centers of Excellence. 

(b) ACTIVITIES OF THE CENTER.—The Center shall prioritize its activities on the 

basis of risk to address the most significant threats, vulnerabilities, and consequences posed by United States borders and border control systems. The activities 

shall include the conduct of research, the examination of existing and emerging borVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00021 Fmt 6659 Sfmt 6621 E:\HR\OC\HR345P1.XXX HR345P1
18 

der security technology and systems, and the provision of education, technical, and 

analytical assistance for the Department of Homeland Security to effectively secure 

the borders. 

SEC. 307. SENSE OF CONGRESS REGARDING COOPERATION WITH INDIAN NATIONS. 

It is the sense of Congress that— 

(1) the Department of Homeland Security should strive to include as part 

of a National Strategy for Border Security recommendations on how to enhance 

Department cooperation with sovereign Indian Nations on securing our borders 

and preventing terrorist entry, including, specifically, the Department should 

consider whether a Tribal Smart Border working group is necessary and whether further expansion of cultural sensitivity training, as exists in Arizona with 

the Tohono O’odham Nation, should be expanded elsewhere; and 

(2) as the Department of Homeland Security develops a National Strategy 

for Border Security, it should take into account the needs and missions of each 

agency that has a stake in border security and strive to ensure that these agencies work together cooperatively on issues involving Tribal lands. 

TITLE IV—DETENTION AND REMOVAL 

SEC. 401. MANDATORY DETENTION FOR ALIENS APPREHENDED AT OR BETWEEN PORTS OF 

ENTRY. 

(a) IN GENERAL.—Beginning on October 1, 2006, an alien who is attempting to 

illegally enter the United States and who is apprehended at a United States port 

of entry or along the international land and maritime border of the United States 

shall be detained until removed or a final decision granting admission has been determined, unless the alien— 

(1) is permitted to withdraw an application for admission under section 

235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)) and immediately departs from the United States pursuant to such section; or 

(2) is paroled into the United States by the Secretary of Homeland Security 

for urgent humanitarian reasons or significant public benefit in accordance with 

section 212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)). 

(b) REQUIREMENTS DURING INTERIM PERIOD.—Beginning 60 days after the date 

of the enactment of this Act and before October 1, 2006, an alien described in subsection (a) may be released with a notice to appear only if— 

(1) the Secretary of Homeland Security determines, after conducting all appropriate background and security checks on the alien, that the alien does not 

pose a national security risk; and 

(2) the alien provides a bond of not less than $5,000. 

(c) RULES OF CONSTRUCTION.— 

(1) ASYLUM AND REMOVAL.—Nothing in this section shall be construed as 

limiting the right of an alien to apply for asylum or for relief or deferral of removal based on a fear of persecution. 

(2) TREATMENT OF CERTAIN ALIENS.—The mandatory detention requirement 

in subsection (a) does not apply to any alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does 

not have full diplomatic relations. 

SEC. 402. EXPANSION AND EFFECTIVE MANAGEMENT OF DETENTION FACILITIES. 

Subject to the availability of appropriations, the Secretary of Homeland Security 

shall fully utilize— 

(1) all available detention facilities operated or contracted by the Department of Homeland Security; and 

(2) all possible options to cost effectively increase available detention capacities, including the use of temporary detention facilities, the use of State and 

local correctional facilities, private space, and secure alternatives to detention. 

SEC. 403. ENHANCING TRANSPORTATION CAPACITY FOR UNLAWFUL ALIENS. 

(a) IN GENERAL.—The Secretary of Homeland Security is authorized to enter 

into contracts with private entities for the purpose of providing secure domestic 

transport of aliens who are apprehended at or along the international land or maritime borders from the custody of United States Customs and Border Protection to 

detention facilities and other locations as necessary. 

(b) CRITERIA FOR SELECTION.—Notwithstanding any other provision of law, to 

enter into a contract under paragraph (1), a private entity shall submit an application to the Secretary at such time, in such manner, and containing such information 

as the Secretary may require. The Secretary shall select from such applications 

19 

those entities which offer, in the determination of the Secretary, the best combination of service, cost, and security. 

SEC. 404. DENIAL OF ADMISSION TO NATIONALS OF COUNTRY DENYING OR DELAYING ACCEPTING ALIEN. 

Section 243(d) of the Immigration and Nationality Act (8 U.S.C. 1253(d)) is 

amended to read as follows: 

‘‘(d) DENIAL OF ADMISSION TO NATIONALS OF COUNTRY DENYING OR DELAYING

ACCEPTING ALIEN.—Whenever the Secretary of Homeland Security determines that 

the government of a foreign country has denied or unreasonably delayed accepting 

an alien who is a citizen, subject, national, or resident of that country after the alien 

has been ordered removed, the Secretary, after consultation with the Secretary of 

State, may deny admission to any citizen, subject, national, or resident of that country until the country accepts the alien who was ordered removed.’’. 

SEC. 405. REPORT ON FINANCIAL BURDEN OF REPATRIATION. 

Not later than October 31 of each year, the Secretary of Homeland Security 

shall submit to the Secretary of State and Congress a report that details the cost 

to the Department of Homeland Security of repatriation of unlawful aliens to their 

countries of nationality or last habitual residence, including details relating to cost 

per country. The Secretary shall include in each such report the recommendations 

of the Secretary to more cost effectively repatriate such aliens. 

SEC. 406. TRAINING PROGRAM. 

Not later than six months after the date of the enactment of this Act, the Secretary of Homeland Security— 

(1) review and evaluate the training provided to Border Patrol agents and 

port of entry inspectors regarding the inspection of aliens to determine whether 

an alien is referred for an interview by an asylum officer for a determination 

of credible fear; 

(2) based on the review and evaluation described in paragraph (1), take necessary and appropriate measures to ensure consistency in referrals by Border 

Patrol agents and port of entry inspectors to asylum officers for determinations 

of credible fear. 

SEC. 407. EXPEDITED REMOVAL. 

(a) IN GENERAL.—Section 235(b)(1)(A)(iii) of the Immigration and Nationality 

Act (8 U.S.C. 1225(b)(1)(A)(iii)) is amended— 

(1) in subclause (I), by striking ‘‘Attorney General’’ and inserting ‘‘Secretary 

of Homeland Security’’ each place it appears; and 

(2) by adding at the end the following new subclause: 

‘‘(III) EXCEPTION.—Notwithstanding subclauses (I) and (II), the 

Secretary of Homeland Security shall apply clauses (i) and (ii) of 

this subparagraph to any alien (other than an alien described in 

subparagraph (F)) who is not a national of a country contiguous to 

the United States, who has not been admitted or paroled into the 

United States, and who is apprehended within 100 miles of an 

international land border of the United States and within 14 days 

of entry.’’. 

(b) EXCEPTIONS.—Section 235(b)(1)(F) of the Immigration and Nationality Act (8 

U.S.C. 1225(b)(1)(F)) is amended by striking ‘‘who arrives by aircraft at a port of 

entry’’ and inserting ‘‘, and who arrives by aircraft at a port of entry or who is 

present in the United States and arrived in any manner at or between a port of 

entry’’. 

(c) EFFECTIVE DATE.—The amendments made by this section shall take effect 

on the date of the enactment of this Act and shall apply to all aliens apprehended 

on or after such date. 

SEC. 408. GAO STUDY ON DEATHS IN CUSTODY. 

The Comptroller General of the United States, within 6 months after the date 

of the enactment of this Act, shall submit to Congress a report on the deaths in custody of detainees held on immigration violations by the Secretary of Homeland Security. The report shall include the following information with respect to any such 

deaths and in connection therewith: 

(1) Whether any crimes were committed by personnel of the Department of 

Homeland Security. 

(2) Whether any such deaths were caused by negligence or deliberate indifference by such personnel. 

(3) Whether Department practice and procedures were properly followed 

and obeyed. 

20 

(4) Whether such practice and procedures are sufficient to protect the 

health and safety of such detainees. 

(5) Whether reports of such deaths were made under the Deaths in Custody 

Act. 

TITLE V—EFFECTIVE ORGANIZATION OF 

BORDER SECURITY AGENCIES 

SEC. 501. ENHANCED BORDER SECURITY COORDINATION AND MANAGEMENT. 

The Secretary of Homeland Security shall ensure full coordination of border security efforts among agencies within the Department of Homeland Security, including United States Immigration and Customs Enforcement, United States Customs 

and Border Protection, and United States Citizenship and Immigration Services, 

and shall identify and remedy any failure of coordination or integration in a prompt 

and efficient manner. In particular, the Secretary of Homeland Security shall— 

(1) oversee and ensure the coordinated execution of border security operations and policy; 

(2) establish a mechanism for sharing and coordinating intelligence information and analysis at the headquarters and field office levels pertaining to 

counter-terrorism, border enforcement, customs and trade, immigration, human 

smuggling, human trafficking, and other issues of concern to both United States 

Immigration and Customs Enforcement and United States Customs and Border 

Protection; 

(3) establish Department of Homeland Security task forces (to include other 

Federal, State, Tribal and local law enforcement agencies as appropriate) as 

necessary to better coordinate border enforcement and the disruption and dismantling of criminal organizations engaged in cross-border smuggling, money 

laundering, and immigration violations; 

(4) enhance coordination between the border security and investigations 

missions within the Department by requiring that, with respect to cases involving violations of the customs and immigration laws of the United States, United 

States Customs and Border Protection coordinate with and refer all such cases 

to United States Immigration and Customs Enforcement; 

(5) examine comprehensively the proper allocation of the Department’s border security related resources, and analyze budget issues on the basis of Department-wide border enforcement goals, plans, and processes; 

(6) establish measures and metrics for determining the effectiveness of coordinated border enforcement efforts; and 

(7) develop and implement a comprehensive plan to protect the northern 

and southern land borders of the United States and address the different challenges each border faces by— 

(A) coordinating all Federal border security activities; 

(B) improving communications and data sharing capabilities within the 

Department and with other Federal, State, local, tribal, and foreign law enforcement agencies on matters relating to border security; and 

(C) providing input to relevant bilateral agreements to improve border 

functions, including ensuring security and promoting trade and tourism. 

SEC. 502. OFFICE OF AIR AND MARINE OPERATIONS. 

(a) ESTABLISHMENT.—Subtitle C of title IV of the Homeland Security Act of 

2002 (6 U.S.C. 201 et seq.) is amended by adding at the end the following new section: 

‘‘SEC. 431. OFFICE OF AIR AND MARINE OPERATIONS. 

‘‘(a) ESTABLISHMENT.—There is established in the Department an Office of Air 

and Marine Operations (referred to in this section as the ‘Office’). 

‘‘(b) ASSISTANT SECRETARY.—The Office shall be headed by an Assistant Secretary for Air and Marine Operations who shall be appointed by the President, by 

and with the advice and consent of the Senate, and who shall report directly to the 

Secretary. The Assistant Secretary shall be responsible for all functions and operations of the Office. 

‘‘(c) MISSIONS.— 

‘‘(1) PRIMARY MISSION.—The primary mission of the Office shall be the prevention of the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States. 

‘‘(2) SECONDARY MISSION.—The secondary mission of the Office shall be to 

assist other agencies to prevent the entry of terrorists, other unlawful aliens, 

21 

instruments of terrorism, narcotics, and other contraband into the United 

States. 

‘‘(d) AIR AND MARINE OPERATIONS CENTER.— 

‘‘(1) IN GENERAL.—The Office shall operate and maintain the Air and Marine Operations Center in Riverside, California, or at such other facility of the 

Office as is designated by the Secretary. 

‘‘(2) DUTIES.—The Center shall provide comprehensive radar, communications, and control services to the Office and to eligible Federal, State, or local 

agencies (as determined by the Assistant Secretary for Air and Marine Operations), in order to identify, track, and support the interdiction and apprehension of individuals attempting to enter United States airspace or coastal waters 

for the purpose of narcotics trafficking, trafficking of persons, or other terrorist 

or criminal activity. 

‘‘(e) ACCESS TO INFORMATION.—The Office shall ensure that other agencies within the Department of Homeland Security, the Department of Defense, the Department of Justice, and such other Federal, State, or local agencies, as may be determined by the Secretary, shall have access to the information gathered and analyzed 

by the Center. 

‘‘(f) REQUIREMENT.—Beginning not later than 180 days after the date of the enactment of this Act, the Secretary shall require that all information concerning all 

aviation activities, including all airplane, helicopter, or other aircraft flights, that 

are undertaken by the either the Office, United States Immigration and Customs 

Enforcement, United States Customs and Border Protection, or any subdivisions 

thereof, be provided to the Air and Marine Operations Center. Such information 

shall include the identifiable transponder, radar, and electronic emissions and codes 

originating and resident aboard the aircraft or similar asset used in the aviation activity. 

‘‘(g) TIMING.—The Secretary shall require the information described in subsection (f) to be provided to the Air and Marine Operations Center in advance of 

the aviation activity whenever practicable for the purpose of timely coordination and 

conflict resolution of air missions by the Office, United States Immigration and Customs Enforcement, and United States Customs and Border Protection. 

‘‘(h) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to 

alter, impact, diminish, or in any way undermine the authority of the Administrator 

of the Federal Aviation Administration to oversee, regulate, and control the safe and 

efficient use of the airspace of the United States.’’. 

(b) TECHNICAL AND CONFORMING AMENDMENTS.— 

(1) ADDITIONAL ASSISTANT SECRETARY.—Section 103(a)(9) of the Homeland 

Security Act of 2002 (6 U.S.C. 113(a)(9)) is amended by striking ‘‘12’’ and inserting ‘‘13’’. 

(2) CLERICAL AMENDMENT.—The table of contents in section 1(b) of such Act 

(6 U.S.C. 101) is amended by inserting after the item relating to section 430 

the following new item: 

‘‘Sec. 431. Office of Air and Marine Operations.’’. 

SEC. 503. SHADOW WOLVES TRANSFER. 

(a) TRANSFER OF EXISTING UNIT.—Not later that 90 days after the date of the 

enactment of this Act, the Secretary of Homeland Security shall transfer to United 

States Immigration and Customs Enforcement all functions (including the personnel, assets, and liabilities attributable to such functions) of the Customs Patrol 

Officers unit operating on the Tohono O’odham Indian reservation (commonly 

known as the ‘‘Shadow Wolves’’ unit). 

(b) ESTABLISHMENT OF NEW UNITS.—The Secretary is authorized to establish 

within United States Immigration and Customs Enforcement additional units of 

Customs Patrol Officers in accordance with this section, as appropriate. 

(c) DUTIES.—The Customs Patrol Officer unit transferred pursuant to subsection 

(a), and additional units established pursuant to subsection (b), shall operate on Indian lands by preventing the entry of terrorists, other unlawful aliens, instruments 

of terrorism, narcotics, and other contraband into the United States. 

(d) BASIC PAY FOR JOURNEYMAN OFFICERS.—A Customs Patrol Officer in a unit 

described in this section shall receive equivalent pay as a special agent with similar 

competencies within United States Immigration and Customs Enforcement pursuant 

to the Department of Homeland Security’s Human Resources Management System 

established under section 841 of the Homeland Security Act (6 U.S.C. 411). 

(e) SUPERVISORS.—Each unit described in this section shall be supervised by a 

Chief Customs Patrol Officer, who shall have the same rank as a resident agentin-charge of the Office of Investigations within United States Immigration and Customs Enforcement. 

22 

TITLE VI—TERRORIST AND CRIMINAL ALIENS 

SEC. 601. REMOVAL OF TERRORIST ALIENS. 

(a) EXPANSION OF REMOVAL.— 

(1) Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 

1231(b)(3)) is amended— 

(A) in subparagraph (A)— 

(i) by striking ‘‘Attorney General may not’’ and inserting ‘‘Secretary 

of Homeland Security may not’’; 

(ii) by inserting ‘‘or the Secretary’’ after ‘‘if the Attorney General’’; 

and 

(B) in subparagraph (B)— 

(i) by inserting ‘‘or the Secretary of Homeland Security’’ after ‘‘if 

the Attorney General’’; 

(ii) by striking ‘‘or’’ in clause (iii); 

(iii) by striking the period at the end of clause (iv) and inserting 

‘‘; or’’; 

(iv) by inserting after clause (iv) the following new clause: 

‘‘(v) the alien is described in any subclause of section 212(a)(3)(B)(i) 

or section 212(a)(3)(F), unless, in the case only of an alien described in 

subclause (IV) or (IX) of section 212(a)(3)(B)(i), the Secretary of Homeland Security determines, in the Secretary’s discretion, that there are 

not reasonable grounds for regarding the alien as a danger to the security of the United States.’’; and 

(v) in the third sentence, by inserting ‘‘or the Secretary of Homeland Security’’ after ‘‘Attorney General’’; and 

(vi) by striking the last sentence. 

(2) Section 208(b)(2)(A)(v) of such Act (8 U.S.C. 1158(b)(2)(A)(v)) is amended— 

(A) by striking ‘‘subclause (I), (II), (III), (IV), or (VI)’’ and inserting ‘‘any 

subclause’’; 

(B) by striking ‘‘237(a)(4)(B)’’ and inserting ‘‘212(a)(3)(F)’’; and 

(C) by inserting ‘‘or (IX)’’ after ‘‘subclause (IV)’’. 

(3) Section 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4)) is amended— 

(A) by striking ‘‘inadmissible under’’ and inserting ‘‘described in’’; and 

(B) by striking ‘‘deportable under’’ and inserting ‘‘described in’’. 

(4) Section 240B(b)(1)(C) of such Act (8 U.S.C. 1229c(b)(1)(C)) is amended 

by striking ‘‘deportable under’’ and inserting ‘‘described in’’. 

(5) Section 249 of such Act (8 U.S.C. 1259)) is amended— 

(A) by striking ‘‘inadmissible under’’ and inserting ‘‘described in’’; and 

(B) in paragraph (d), by striking ‘‘deportable under’’ and inserting ‘‘described in’’. 

(b) RETROACTIVE APPLICATION.—The amendments made by this section shall 

take effect on the date of enactment of this Act and sections 208(b)(2)(A), 240A, 

240B, 241(b)(3), and 249 of the Immigration and Nationality Act, as so amended, 

shall apply to— 

(1) all aliens in removal, deportation, or exclusion proceedings; 

(2) all applications pending on or filed after the date of the enactment of 

this Act; and 

(3) with respect to aliens and applications described in paragraph (1) or (2), 

acts and conditions constituting a ground for inadmissibility, excludability, deportation, or removal occurring or existing before, on, or after the date of the 

enactment of this Act. 

SEC. 602. DETENTION OF DANGEROUS ALIENS. 

(a) IN GENERAL.—Section 241 of the Immigration and Nationality Act (8 U.S.C. 

1231) is amended— 

(1) in subsection (a), by striking ‘‘Attorney General’’ and inserting ‘‘Secretary of Homeland Security’’ each place it appears; 

(2) in subsection (a)(1)(B), by adding after and below clause (iii) the following: 

‘‘If, at that time, the alien is not in the custody of the Secretary (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 

23 

removal period shall be tolled, and shall begin anew on the date of the 

alien’s return to the custody of the Secretary.’’; 

(3) by amending clause (ii) of subsection (a)(1)(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.’’; 

(4) by amending subparagraph (C) of subsection (a)(1) 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 fails or refuses to make all reasonable efforts 

to comply with the removal order, or to fully cooperate with the Secretary’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, or conspires or acts to prevent the 

alien’s removal subject to an order of removal.’’; 

(5) in subsection (a)(2), by adding at the end the following: ‘‘If a court orders 

a stay of removal of an alien who is subject to an administratively final order 

of removal, the Secretary in the exercise of discretion may detain the alien during the pendency of such stay of removal.’’; 

(6) in subsection (a)(3), by amending subparagraph (D) to read as follows: 

‘‘(D) to obey reasonable restrictions on the alien’s conduct or activities, 

or perform affirmative acts, that the Secretary prescribes for the alien, in 

order to prevent the alien from absconding, or for the protection of the community, or for other purposes related to the enforcement of the immigration 

laws.’’; 

(7) in subsection (a)(6), by striking ‘‘removal period and, if released,’’ and 

inserting ‘‘removal period, in the discretion of the Secretary, without any limitations other than those specified in this section, until the alien is removed. If 

an alien is released, the alien’’; 

(8) by redesignating paragraph (7) of subsection (a) as paragraph (10) and 

inserting after paragraph (6) of such subsection the following new paragraphs: 

‘‘(7) PAROLE.—If an alien detained pursuant to paragraph (6) is an applicant for admission, the Secretary, in the Secretary’s discretion, may parole the 

alien under section 212(d)(5) of this Act 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 alien’s parole or the alien’s removal becomes 

reasonably foreseeable, provided that in no circumstance shall such alien be 

considered admitted. 

‘‘(8) APPLICATION OF ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN ALIENS WHO HAVE MADE AN ENTRY.—The procedures described in subsection (j) shall only apply with respect to an alien who— 

‘‘(A) was lawfully admitted the most recent time the alien entered the 

United States or has otherwise effected an entry into the United States, 

and 

‘‘(B) is not detained under paragraph (6). 

‘‘(9) JUDICIAL REVIEW.—Without regard to the place of confinement, judicial 

review of any action or decision pursuant to paragraphs (6), (7), or (8) or subsection (j) shall be available exclusively in habeas corpus proceedings instituted 

in the United States District Court for the District of Columbia, and only if the 

alien has exhausted all administrative remedies (statutory and regulatory) 

available to the alien as of right.’’; and 

(9) by adding at the end the following new subsection: 

‘‘(j) ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN ALIENS WHO

HAVE MADE AN ENTRY.— 

‘‘(1) APPLICATION.—The procedures described in this subsection apply in the 

case of an alien described in subsection (a)(8). 

‘‘(2) ESTABLISHMENT OF A DETENTION REVIEW PROCESS FOR ALIENS WHO

FULLY COOPERATE WITH REMOVAL.— 

‘‘(A) IN GENERAL.—The Secretary shall establish an administrative review process to determine whether the aliens should be detained or released on conditions for aliens who— 

‘‘(i) have made all reasonable efforts to comply with their removal 

orders; 

‘‘(ii) have complied with the Secretary’s efforts to carry out the removal orders, including making timely application in good faith for 

travel or other documents necessary to the alien’s departure, and 

‘‘(iii) have not conspired or acted to prevent removal. 

24 

‘‘(B) DETERMINATION.—The Secretary shall make a determination 

whether to release an alien after the removal period in accordance with 

paragraphs (3) and (4). The determination— 

‘‘(i) shall include consideration of any evidence submitted by the 

alien and the history of the alien’s efforts to comply with the order of 

removal, and 

‘‘(ii) may include 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. 

‘‘(3) AUTHORITY TO DETAIN BEYOND THE REMOVAL PERIOD .— 

‘‘(A) INITIAL 90 DAY PERIOD.—The Secretary 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 subsection (a)(1)(C)). 

‘‘(B) EXTENSION.— 

‘‘(i) IN GENERAL.—The Secretary in the exercise of discretion, without any limitations other than those specified in this section, may continue to detain an alien beyond the 90 days authorized in subparagraph 

(A) if the conditions described in subparagraph (A), (B), or (C) of paragraph (4) apply. 

‘‘(ii) RENEWAL.—The Secretary may renew a certification under 

paragraph (4)(A) every six months 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 a certification, the Secretary 

may not continue to detain the alien under such paragraph. 

‘‘(iii) DELEGATION.—Notwithstanding section 103, the Secretary 

may not delegate the authority to make or renew a certification described in clause (ii), (iii), or (v) of paragraph (4)(B) below the level of 

the Assistant Secretary for Immigration and Customs Enforcement. 

‘‘(iv) HEARING.—The Secretary may request that the Attorney General provide for a hearing to make the determination described in 

clause (iv)(II) of paragraph (4)(B). 

‘‘(4) CONDITIONS FOR EXTENSION.—The conditions for continuation of detention are any of the following: 

‘‘(A) 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 alien’s failure or refusal to make 

all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’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, or conspiracies or acts to prevent removal. 

‘‘(B) The Secretary certifies in writing any of the following: 

‘‘(i) In consultation with the Secretary of Health and Human Services, 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, the 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 (including 

available information from the intelligence community, and without regard to the grounds upon which the alien was ordered removed), there 

is reason to believe that the release of the alien would threaten the national security of the United States. 

‘‘(iv) The release of the alien will threaten the safety of the community or any person, the conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and— 

‘‘(I) the alien has been convicted of one or more aggravated 

felonies described in section 101(a)(43)(A) or of one or more crimes 

identified by the Secretary by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or 

such crimes, for an aggregate term of imprisonment of at least five 

years; or 

‘‘(II) the alien has committed one or more crimes of violence 

and, because of a mental condition or personality disorder and beVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00028 Fmt 6659 Sfmt 6621 E:\HR\OC\HR345P1.XXX HR345P1
25 

havior associated with that condition or disorder, the alien is likely 

to engage in acts of violence in the future. 

‘‘(v) 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. 

‘‘(C) Pending a determination under subparagraph (B), so long as the 

Secretary has initiated the administrative review process no later than 30 

days after the expiration of the removal period (including any extension of 

the removal period as provided in subsection (a)(1)(C)). 

‘‘(5) RELEASE ON CONDITIONS.—If it is determined that an alien should be 

released from detention, the Secretary in the exercise of discretion may impose 

conditions on release as provided in subsection (a)(3). 

‘‘(6) REDETENTION.—The Secretary 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 the alien 

fails to comply with the conditions of release or to cooperate in the alien’s removal from the United States, or if, upon reconsideration, the Secretary determines that the alien can be detained under paragraph (1). Paragraphs (6) 

through (8) of subsection (a) shall apply to any alien returned to custody pursuant to this paragraph, as if the removal period terminated on the day of the 

redetention. 

‘‘(7) CERTAIN ALIENS WHO EFFECTED ENTRY.—If an alien has effected an 

entry into the United States but has neither been lawfully admitted nor 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, the Secretary in the exercise of discretion may decide not to apply subsection (a)(8) and this subsection and may detain the alien without any limitations except those imposed by regulation.’’. 

(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect 

upon the date of enactment of this Act, and section 241 of the Immigration and Nationality Act, as amended, shall apply to— 

(1) all aliens subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of enactment of this 

Act; and 

(2) acts and conditions occurring or existing before, on, or after the date of 

enactment of this Act. 

SEC. 603. INCREASE IN CRIMINAL PENALTIES. 

Section 243 of the Immigration and Nationality Act (8 U.S.C. 1253) is amended— 

(1) in subsection (a)(1)— 

(A) in the matter before subparagraph (A), by inserting ‘‘or 212(a)’’ after 

‘‘section 237(a)’’; and 

(B) by striking ‘‘imprisoned not more than four years’’ and inserting 

‘‘imprisoned for not less than six months or more than five years’’; and 

(2) in subsection (b)— 

(A) by striking ‘‘not more than $1,000’’ and inserting ‘‘under title 18, 

United States Code’’; and 

(B) by striking ‘‘for not more than one year’’ and inserting ‘‘for not less 

than six months or more than five years (or 10 years if the alien is a member of any class described in paragraph (1)(E), (2), (3), or (4) of section 

237(a)’’. 

SEC. 604. PRECLUDING ADMISSIBILITY OF AGGRAVATED FELONS AND OTHER CRIMINALS. 

(a) EXCLUSION BASED ON FRAUDULENT DOCUMENTATION.—Section 212(a)(2)(A)(i) 

of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)) is amended— 

(1) in subclause (I), by striking ‘‘or’’ at the end; 

(2) in subclause (II), by adding ‘‘or’’ at the end; and 

(3) by inserting after subclause (II) the following new subclause: 

‘‘(III) a violation (or a conspiracy or attempt to violate) an offense described in section 208 of the Social Security Act or section 

1028 of title 18, United States Code,’’. 

(b) EXCLUSION BASED ON AGGRAVATED FELONY, UNLAWFUL PROCUREMENT OF

CITIZENSHIP, AND CRIMES OF DOMESTIC VIOLENCE.—Section 212(a)(2) of such Act (8 

U.S.C. 1182(a)(2)) is amended by adding at the end the following new subparagraphs: 

‘‘(J) AGGRAVATED FELONY.—Any alien who is convicted of an aggravated 

felony at any time is inadmissible. 

26 

‘‘(K) UNLAWFUL PROCUREMENT OF CITIZENSHIP.—Any alien convicted of, 

or who admits having committed, or who admits committing acts which 

constitute the essential elements of, a violation of (or a conspiracy or attempt to violate) subsection (a) or (b) of section 1425 of title 18, United 

States Code is inadmissible. 

‘‘(L) CRIMES OF DOMESTIC VIOLENCE, STALKING, OR VIOLATION OF PRO- TECTION ORDERS; CRIMES AGAINST CHILDREN.— ‘‘(i) DOMESTIC VIOLENCE, STALKING, OR CHILD ABUSE.— ‘‘(I) IN GENERAL.—Subject to subclause (II), any alien who at 

any time is convicted of, or who admits having committed, or who 

admits committing acts which constitute the essential elements of, 

a crime of domestic violence, a crime of stalking, or a crime of child 

abuse, child neglect, or child abandonment is inadmissible. 

‘‘(II) WAIVER FOR VICTIMS OF DOMESTIC VIOLENCE.—Subclause 

(I) shall not apply to any alien described in section 237(a)(7)(A). 

‘‘(III) CRIME OF DOMESTIC VIOLENCE DEFINED.—For purposes of 

subclause (I), 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 person for whom the protection order was issued is inadmissible. 

‘‘(II) PROTECTION ORDER DEFINED.—For purposes of subclause 

(I), 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 proceeding.’’. 

(c) WAIVER AUTHORITY.—Section 212(h) of such Act (8 U.S.C. 1182(h)) is amended— 

(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, in 

the discretion of the Attorney General or such Secretary, waive the application 

of subparagraph (A)(i)(I), (A)(i)(III), (B), (D), (E), (K), and (L) of subsection 

(a)(2)’’; 

(2) in paragraphs (1)(A) and (1)(B) and the last sentence, by inserting ‘‘or 

the Secretary’’ after ‘‘Attorney General’’ each place it appears; 

(3) in paragraph (2), by striking ‘‘Attorney General, in his discretion,’’ and 

inserting ‘‘Attorney General or the Secretary of Homeland Security, in the discretion of the Attorney General or such Secretary,’’; 

(4) in paragraph (2), by striking ‘‘as he’’ and inserting ‘‘as the Attorney General or the Secretary’’; 

(5) in the second sentence, by striking ‘‘criminal acts involving torture’’ and 

inserting ‘‘criminal acts involving torture, or an aggravated felony’’; and 

(6) in the third sentence, 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’’. 

(d) CONSTRUCTION.—The amendments made by this section shall not be construed to create eligibility for relief from removal under section 212(c) of the Immigration and Nationality Act, as in effect before its repeal by section 304(b) of the 

Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public 

Law 104–208), where such eligibility did not exist before these amendments became 

effective. 

(e) EFFECTIVE DATE.—The amendments made by this section shall apply to— 

27 

(1) any act that occurred before, on, or after the date of the enactment of 

this Act; and 

(2) to all aliens who are required to establish admissibility on or after the 

such date, and in all removal, deportation, or exclusion proceedings that are 

filed, pending, or reopened, on or after such date. 

SEC. 605. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT OF STATUS FOR AGGRAVATED 

FELONIES. 

(a) IN GENERAL.—Section 209(c) of the Immigration and Nationality Act (8 

U.S.C. 1159(c)) is amended by adding at the end the following: ‘‘However, an alien 

who is convicted of an aggravated felony is not eligible for a waiver or for adjustment of status under this section.’’. 

(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply— 

(1) to any act that occurred before, on, or after the date of the enactment 

of this Act; and 

(2) to all aliens who are required to establish admissibility on or after such 

date, and in all removal, deportation, or exclusion proceedings that are filed, 

pending, or reopened, on or after such date. 

SEC. 606. REMOVING DRUNK DRIVERS. 

(a) IN GENERAL.—Section 101(a)(43)(F) of the Immigration and Nationality Act 

(8 U.S.C. 1101(a)(43)(F)) is amended by inserting ‘‘, including a third drunk driving 

conviction, regardless of the States in which the convictions occurred, and regardless 

of whether the offenses are deemed to be misdemeanors or felonies under State or 

Federal law,’’ after ‘‘offense)’’. 

(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect 

on the date of the enactment of this Act and shall apply to convictions entered before, on, or after such date. 

SEC. 607. DESIGNATED COUNTY LAW ENFORCEMENT ASSISTANCE PROGRAM. 

(a) DESIGNATED COUNTIES ADJACENT TO THE SOUTHERN BORDER OF THE UNITED

STATES DEFINED.—In this section, the term ‘‘designated counties adjacent to the 

southern international border of the United States’’ includes a county any part of 

which is within 25 miles of the southern international border of the United States. 

(b) AUTHORITY.— 

(1) IN GENERAL.—Any Sheriff or coalition or group of Sheriffs from designated counties adjacent to the southern international border of the United 

States may transfer aliens detained or in the custody of the Sheriff who are not 

lawfully present in the United States to appropriate Federal law enforcement 

officials, and shall be promptly paid for the costs of performing such transfers 

by the Attorney General for any local or State funds previously expended or proposed to be spent by that Sheriff or coalition or group of Sheriffs. 

(2) PAYMENT OF COSTS.—Payment of costs under paragraph (1) shall include 

payment for costs of detaining, housing, and transporting aliens who are not 

lawfully present in the United States or who have unlawfully entered the 

United States at a location other than a port of entry and who are taken into 

custody by the Sheriff. 

(3) LIMITATION TO FUTURE COSTS.—In no case shall payment be made under 

this section for costs incurred before the date of the enactment of this Act. 

(4) ADVANCE PAYMENT OF COSTS.—The Attorney General shall make an advance payment under this section upon a certification of anticipated costs for 

which payment may be made under this section, but in no case shall such an 

advance payment cover a period of costs of longer than 3 months. 

(c) DESIGNATED COUNTY LAW ENFORCEMENT ACCOUNT.— 

(1) SEPARATE ACCOUNT.—Reimbursement or pre-payment under subsection 

(b) shall be made promptly from funds deposited into a separate account in the 

Treasury of the United States to be entitled the ‘‘Designated County Law Enforcement Account’’. 

(2) AVAILABILITY OF FUNDS.—All deposits into the Designated County Law 

Enforcement Account shall remain available until expended to the Attorney 

General to carry out the provisions of this section. 

(3) PROMPTLY DEFINED.—For purposes of this section, the term ‘‘promptly’’ 

means within 60 days. 

(d) FUNDS FOR THE DESIGNATED COUNTY LAW ENFORCEMENT ACCOUNT.—Only 

funds designated, authorized, or appropriated by Congress may be deposited or 

transferred to the Designated County Law Enforcement Account. The Designated 

County Law Enforcement Account is authorized to receive up to $100,000,000 per 

year. 

(e) USE OF FUNDS.— 

28 

(1) IN GENERAL.—Funds provided under this section shall be payable directly to participating Sheriff’s offices and may be used for the transfers described in subsection (b)(1), including the costs of personnel (such as overtime 

pay and costs for reserve deputies), costs of training of such personnel, equipment, and, subject to paragraph (2), the construction, maintenance, and operation of detention facilities to detain aliens who are unlawfully present in the 

United States. For purposes of this section, an alien who is unlawfully present 

in the United States shall be deemed to be a Federal prisoner beginning upon 

determination by Federal law enforcement officials that such alien is unlawfully 

present in the United States, and such alien shall, upon such determination, 

be deemed to be in Federal custody. In order for costs to be eligible for payment, 

the Sheriff making such application shall personally certify under oath that all 

costs submitted in the application for reimbursement or advance payment meet 

the requirements of this section and are reasonable and necessary, and such 

certification shall be subject to all State and Federal laws governing statements 

made under oath, including the penalties of perjury, removal from office, and 

prosecution under State and Federal law. 

(2) LIMITATION.—Not more than 20 percent of the amount of funds provided 

under this section may be used for the construction or renovation of detention 

or similar facilities. 

(f) DISPOSITION AND DELIVERY OF DETAINED ALIENS.—All aliens detained or 

taken into custody by a Sheriff under this section and with respect to whom Federal 

law enforcement officials determine are unlawfully present in the United States, 

shall be immediately delivered to Federal law enforcement officials. In accordance 

with subsection (e)(1), an alien who is in the custody of a Sheriff shall be deemed 

to be a Federal prisoner and in Federal custody. 

(g) REGULATIONS.—The Attorney General shall issue, on an interim final basis, 

regulations not later than 60 days after the date of the enactment of this Act— 

(1) governing the distribution of funds under this section for all reasonable 

and necessary costs and other expenses incurred or proposed to be incurred by 

a Sheriff or coalition or group of Sheriffs under this section; and 

(2) providing uniform standards that all other Federal law enforcement officials shall follow to cooperate with such Sheriffs and to otherwise implement 

the requirements of this section. 

(h) EFFECTIVE DATE.—The provisions of this section shall take effect on its enactment. The promulgation of any regulations under subsection (g) is not a necessary precondition to the immediate deployment or work of Sheriffs personnel or 

corrections officers as authorized by this section. Any reasonable and necessary expenses or costs authorized by this section and incurred by such Sheriffs after the 

date of the enactment of this Act but prior to the date of the promulgation of such 

regulations are eligible for reimbursement under the terms and conditions of this 

section. 

(i) AUDIT.—All funds paid out under this section are subject to audit by the Inspector General of the Department of Justice and abuse or misuse of such funds 

shall be vigorously investigated and prosecuted to the full extent of Federal law. 

(j) SUPPLEMENTAL FUNDING.—All funds paid out under this section must supplement, and may not supplant, State or local funds used for the same or similar purposes. 

SEC. 608. RENDERING INADMISSIBLE AND DEPORTABLE ALIENS PARTICIPATING IN CRIMINAL STREET GANGS; DETENTION; INELIGIBILITY FROM PROTECTION FROM REMOVAL AND ASYLUM. 

(a) INADMISSIBLE.—Section 212(a)(2) of the Immigration and Nationality Act (8 

U.S.C. 1182(a)(2)), as amended by section 604(b), is further amended by adding at 

the end the following: 

‘‘(M) CRIMINAL STREET GANG PARTICIPATION.— 

‘‘(i) IN GENERAL.—Any alien is inadmissible if the alien has been 

removed under section 237(a)(2)(F), or if the consular officer or the Secretary of Homeland Security knows, or has reasonable ground to believe that the alien— 

‘‘(I) is a member of a criminal street gang and has committed, 

conspired, or threatened to commit, or seeks to enter the United 

States to engage solely, principally, or incidentally in, a gang crime 

or any other unlawful activity; or 

‘‘(II) is a member of a criminal street gang designated under 

section 219A. 

‘‘(ii) CRIMINAL STREET GANG DEFINED.—For purposes of this subparagraph, the term ‘criminal street gang’ means a formal or informal 

group or association of 3 or more individuals, who commit 2 or more 

gang crimes (one of which is a crime of violence, as defined in section 

29 

16 of title 18, United States Code) in 2 or more separate criminal episodes in relation to the group or association. 

‘‘(iii) GANG CRIME DEFINED.—For purposes of this subparagraph, 

the term ‘gang crime’ means conduct constituting any Federal or State 

crime, punishable by imprisonment for one year or more, in any of the 

following categories: 

‘‘(I) A crime of violence (as defined in section 16 of title 18, 

United States Code). 

‘‘(II) A crime involving obstruction of justice, tampering with or 

retaliating against a witness, victim, or informant, or burglary. 

‘‘(III) A crime involving the manufacturing, importing, distributing, possessing with intent to distribute, or otherwise dealing in 

a controlled substance or listed chemical (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 

802)). 

‘‘(IV) Any conduct punishable under section 844 of title 18, 

United States Code (relating to explosive materials), subsection (d), 

(g)(1) (where the underlying conviction is a violent felony (as defined in section 924(e)(2)(B) of such title) or is a serious drug offense (as defined in section 924(e)(2)(A)), (i), (j), (k), (o), (p), (q), (u), 

or (x) of section 922 of such title (relating to unlawful acts), or subsection (b), (c), (g), (h), (k), (l), (m), or (n) of section 924 of such title 

(relating to penalties), section 930 of such title (relating to possession of firearms and dangerous weapons in Federal facilities), section 931 of such title (relating to purchase, ownership, or possession of body armor by violent felons), sections 1028 and 1029 of 

such title (relating to fraud and related activity in connection with 

identification documents or access devices), 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). 

‘‘(V) Any conduct punishable 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 importation of alien for immoral purpose) 

of this Act.’’. 

(b) DEPORTABLE.—Section 237(a)(2) of such Act (8 U.S.C. 1227(a)(2)) is amended 

by adding at the end the following: 

‘‘(F) CRIMINAL STREET GANG PARTICIPATION.— ‘‘(i) IN GENERAL.—Any alien is deportable who— 

‘‘(I) is a member of a criminal street gang and is convicted of 

committing, or conspiring, threatening, or attempting to commit, a 

gang crime; or 

‘‘(II) is determined by the Secretary of Homeland Security to 

be a member of a criminal street gang designated under section 

219A. 

‘‘(ii) DEFINITIONS.—For purposes of this subparagraph, the terms 

‘criminal street gang’ and ‘gang crime’ have the meaning given such 

terms in section 212(a)(2)(M).’’. 

(c) DESIGNATION OF CRIMINAL STREET GANGS.— 

(1) IN GENERAL.—Chapter 2 of title II of the Immigration and Nationality 

Act (8 U.S.C. 1181 et seq.) is amended by adding at the end the following: 

‘‘DESIGNATION OF CRIMINAL STREET GANGS

‘‘SEC. 219A. (a) DESIGNATION.— 

‘‘(1) IN GENERAL.—The Attorney General is authorized to designate a group 

or association as a criminal street gang in accordance with this subsection if the 

Attorney General finds that the group or association meets the criteria described in section 212(a)(2)(M)(ii)(I). 

‘‘(2) PROCEDURE.— 

‘‘(A) NOTICE.— 

‘‘(i) TO CONGRESSIONAL LEADERS.—Seven days before making a designation under this subsection, the Attorney General shall notify the 

Speaker and Minority Leader of the House of Representatives and the 

Majority Leader and Minority Leader of the Senate, and the members 

30 

of the relevant committees of the House of Representatives and the 

Senate, in writing, of the intent to designate a group or association 

under this subsection, together with the findings made under paragraph (1) with respect to that group or association, and the factual 

basis therefor. 

‘‘(ii) PUBLICATION IN FEDERAL REGISTER.—The Attorney shall publish the designation in the Federal Register seven days after providing 

the notification under clause (i). 

‘‘(B) EFFECT OF DESIGNATION.— ‘‘(i) A designation under this subsection shall take effect upon publication under subparagraph (A)(ii). 

‘‘(ii) Any designation under this subsection shall cease to have effect upon an Act of Congress disapproving such designation. 

‘‘(3) RECORD.—In making a designation under this subsection, the Attorney 

General shall create an administrative record. 

‘‘(4) PERIOD OF DESIGNATION.— ‘‘(A) IN GENERAL.—A designation under this subsection shall be effective for all purposes until revoked under paragraph (5) or (6) or set aside 

pursuant to subsection (b). 

‘‘(B) REVIEW OF DESIGNATION UPON PETITION.— ‘‘(i) IN GENERAL.—The Attorney General shall review the designation of a criminal street gang under the procedures set forth in clauses 

(iii) and (iv) if the designated gang or association files a petition for 

revocation within the petition period described in clause (ii). 

‘‘(ii) PETITION PERIOD.—For purposes of clause (i)— 

‘‘(I) if the designated gang or association has not previously 

filed a petition for revocation under this subparagraph, the petition 

period begins 2 years after the date on which the designation was 

made; or 

‘‘(II) if the designated gang or association has previously filed 

a petition for revocation under this subparagraph, the petition period begins 2 years after the date of the determination made under 

clause (iv) on that petition. 

‘‘(iii) PROCEDURES.—Any criminal street gang that submits a petition for revocation under this subparagraph must provide evidence in 

that petition that the relevant circumstances described in paragraph (1) 

are sufficiently different from the circumstances that were the basis for 

the designation such that a revocation with respect to the gang is warranted. 

‘‘(iv) DETERMINATION.— 

‘‘(I) IN GENERAL.—Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Attorney General shall make a determination as to such revocation. 

‘‘(II) PUBLICATION OF DETERMINATION.—A determination made 

by the Attorney General under this clause shall be published in the 

Federal Register. 

‘‘(III) PROCEDURES.—Any revocation by the Attorney General 

shall be made in accordance with paragraph (6). 

‘‘(C) OTHER REVIEW OF DESIGNATION.— 

‘‘(i) IN GENERAL.—If in a 5-year period no review has taken place 

under subparagraph (B), the Attorney General shall review the designation of the criminal street gang in order to determine whether such 

designation should be revoked pursuant to paragraph (6). 

‘‘(ii) PROCEDURES.—If a review does not take place pursuant to subparagraph (B) in response to a petition for revocation that is filed in 

accordance with that subparagraph, then the review shall be conducted 

pursuant to procedures established by the Attorney General. The results of such review and the applicable procedures shall not be reviewable in any court. 

‘‘(iii) PUBLICATION OF RESULTS OF REVIEW.—The Attorney General 

shall publish any determination made pursuant to this subparagraph 

in the Federal Register. 

‘‘(5) REVOCATION BY ACT OF CONGRESS.—The Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1). 

‘‘(6) REVOCATION BASED ON CHANGE IN CIRCUMSTANCES.— 

‘‘(A) IN GENERAL.—The Attorney General may revoke a designation 

made under paragraph (1) at any time, and shall revoke a designation upon 

completion of a review conducted pursuant to subparagraphs (B) and (C) of 

paragraph (4) if the Attorney General finds that the circumstances that 

31 

were the basis for the designation have changed in such a manner as to 

warrant revocation. 

‘‘(B) PROCEDURE.—The procedural requirements of paragraphs (2) and 

(3) shall apply to a revocation under this paragraph. Any revocation shall 

take effect on the date specified in the revocation or upon publication in the 

Federal Register if no effective date is specified. 

‘‘(7) EFFECT OF REVOCATION.—The revocation of a designation under paragraph (5) or (6) shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation. 

‘‘(8) USE OF DESIGNATION IN HEARING.—If a designation under this subsection has become effective under paragraph (2)(B) an alien in a removal proceeding shall not be permitted to raise any question concerning the validity of 

the issuance of such designation as a defense or an objection at any hearing. 

‘‘(b) JUDICIAL REVIEW OF DESIGNATION.— 

‘‘(1) IN GENERAL.—Not later than 30 days after publication of the designation in the Federal Register, a group or association designated as a criminal 

street gang may seek judicial review of the designation in the United States 

Court of Appeals for the District of Columbia Circuit. 

‘‘(2) BASIS OF REVIEW.—Review under this subsection shall be based solely 

upon the administrative record. 

‘‘(3) SCOPE OF REVIEW.—The Court shall hold unlawful and set aside a designation the court finds to be— 

‘‘(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 

‘‘(B) contrary to constitutional right, power, privilege, or immunity; 

‘‘(C) in excess of statutory jurisdiction, authority, or limitation, or short 

of statutory right; 

‘‘(D) lacking substantial support in the administrative record taken as 

a whole; or 

‘‘(E) not in accord with the procedures required by law. 

‘‘(4) JUDICIAL REVIEW INVOKED.—The pendency of an action for judicial review of a designation shall not affect the application of this section, unless the 

court issues a final order setting aside the designation. 

‘‘(c) RELEVANT COMMITTEE DEFINED.—As used in this section, the term ‘relevant 

committees’ means the Committees on the Judiciary of the House of Representatives 

and of the Senate.’’. 

(2) CLERICAL AMENDMENT.—The table of contents of such Act (8 U.S.C. 1101 

et seq.) is amended by inserting after the item relating to section 219 the following: 

‘‘Sec. 219A. Designation of criminal street gangs.’’. 

(d) MANDATORY DETENTION OF CRIMINAL STREET GANG MEMBERS.— 

(1) IN GENERAL.—Section 236(c)(1)(D) of the Immigration and Nationality 

Act (8 U.S.C. 1226(c)(1)(D)) is amended— 

(A) by inserting ‘‘or 212(a)(2)(M)’’ after ‘‘212(a)(3)(B)’’; and 

(B) by inserting ‘‘237(a)(2)(F) or’’ before ‘‘237(a)(4)(B)’’. 

(2) ANNUAL REPORT.—Not later than March 1 of each year (beginning 1 

year after the date of the enactment of this Act), the Secretary of Homeland 

Security, after consultation with the appropriate Federal agencies, shall submit 

a report to the Committees on the Judiciary of the House of Representatives 

and of the Senate on the number of aliens detained under the amendments 

made by paragraph (1). 

(3) EFFECTIVE DATE.—This subsection and the amendments made by this 

subsection are effective as of the date of enactment of this Act and shall apply 

to aliens detained on or after such date. 

(e) INELIGIBILITY OF ALIEN STREET GANG MEMBERS FROM PROTECTION FROM

REMOVAL AND ASYLUM.— 

(1) INAPPLICABILITY OF RESTRICTION ON REMOVAL TO CERTAIN COUNTRIES.— 

Section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 

1251(b)(3)(B)) is amended, in the matter preceding clause (i), by inserting ‘‘who 

is described in section 212(a)(2)(M)(i) or section 237(a)(2)(F)(i) or who is’’ after 

‘‘to an alien’’. 

(2) INELIGIBILITY FOR ASYLUM.—Section 208(b)(2)(A) of such Act (8 U.S.C. 

1158(b)(2)(A)) is amended— 

(A) in clause (v), by striking ‘‘or’’ at the end; 

(B) by redesignating clause (vi) as clause (vii); and 

(C) by inserting after clause (v) the following: 

‘‘(vi) the alien is described in section 212(a)(2)(M)(i) or section 

237(a)(2)(F)(i) (relating to participation in criminal street gangs); or’’. 

32 

(3) DENIAL OF REVIEW OF DETERMINATION OF INELIGIBILITY FOR TEMPORARY

PROTECTED STATUS.—Section 244(c)(2) of such Act (8 U.S.C. 1254(c)(2)) is 

amended by adding at the end the following: 

‘‘(C) LIMITATION ON JUDICIAL REVIEW.—There shall be no judicial review of any finding under subparagraph (B) that an alien is in described 

in section 208(b)(2)(A)(vi).’’. 

(4) EFFECTIVE DATE.—The amendments made by this subsection are effective on the date of enactment of this Act and shall apply to all applications 

pending on or after such date. 

(f) EFFECTIVE DATE.—Except as otherwise provided, the amendments made by 

this section are effective as of the date of enactment and shall apply to all pending 

cases in which no final administrative action has been entered. 

SEC. 609. NATURALIZATION REFORM. 

(a) BARRING TERRORISTS FROM NATURALIZATION.—Section 316 of the Immigration and Nationality Act (8 U.S.C. 1427) is amended by adding at the end the following new subsection: 

‘‘(g) No person shall be naturalized who the Secretary of Homeland Security determines, in the Secretary’s discretion, to have been at any time 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 over any application for naturalization, regardless whether such jurisdiction to review a decision or action of the Secretary 

is de novo or otherwise.’’. 

(b) CONCURRENT NATURALIZATION AND REMOVAL PROCEEDINGS.—The last sentence of section 318 of such Act (8 U.S.C. 1429) is amended— 

(1) by striking ‘‘shall be considered by the Attorney General’’ and inserting 

‘‘shall be considered by the Secretary of Homeland Security or any court’’; 

(2) by striking ‘‘pursuant to a warrant of arrest issued under the provisions 

of this or any other Act:’’ and inserting ‘‘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 proceeding was commenced:’’; and 

(3) by striking ‘‘upon the Attorney General’’ and inserting ‘‘upon the Secretary of Homeland Security’’. 

(c) PENDING DENATURALIZATION OR REMOVAL PROCEEDINGS.—Section 204(b) of 

such Act (8 U.S.C. 1154(b)) is amended by adding at the end the following: ‘‘No petition shall be approved pursuant to this section if there is any administrative or judicial proceeding (whether civil or criminal) pending against the petitioner that could 

(whether directly or indirectly) result in the petitioner’s denaturalization or the loss 

of the petitioner’s lawful permanent resident status.’’. 

(d) CONDITIONAL PERMANENT RESIDENTS.—Section 216(e) and section 216A(e) of 

such Act (8 U.S.C. 1186a(e), 1186b(e)) are each amended by inserting before the period at the end the following: ‘‘, if the alien has had the conditional basis removed 

under this section’’. 

(e) DISTRICT COURT JURISDICTION.—Section 336(b) of such Act (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 after the date on which the Secretary of 

Homeland Security completes all examinations and interviews conducted under such 

section, as such terms are defined by the Secretary pursuant to regulations, the applicant may apply to the district court for the district in which the applicant 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 for the Secretary’s determination on the application.’’. 

(f) CONFORMING AMENDMENTS.—Section 310(c) of such Act (8 U.S.C. 1421(c)) is 

amended— 

(1) by inserting ‘‘, no later than the date that is 120 days after the Secretary’s final determination’’ before ‘‘seek’’; and 

(2) by striking the second sentence and inserting the following: ‘‘The burden 

shall be upon the petitioner 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, notwithstanding any other provision of law 

(statutory or nonstatutory), including section 2241 of title 28, United States 

Code, or 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, for purposes of an application for 

naturalization, whether an alien is a person of good moral character, whether 

33 

an alien understands and is attached to the principles of the Constitution of the 

United States, or whether an alien is well disposed to the good order and happiness of the United States.’’. 

(g) EFFECTIVE DATE.—The amendments made by this section 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, and shall apply to any application for naturalization or any 

other case or matter under the immigration laws pending on, or filed on or after, 

such date. 

SEC. 610. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE ON CRIMINAL OR SECURITY 

GROUNDS. 

(a) IN GENERAL.—Section 238(b) of the Immigration and Nationality Act (8 

U.S.C. 1228(b)) is amended– 

(1) in paragraph (1)— 

(A) by striking ‘‘Attorney General’’ and inserting ‘‘Secretary of Homeland Security in the exercise of discretion’’; and 

(B) by striking ‘‘set forth in this subsection or’’ and inserting ‘‘set forth 

in this subsection, in lieu of removal proceedings under’’; 

(2) in paragraph (3), by striking ‘‘paragraph (1) until 14 calendar days’’ and 

inserting ‘‘paragraph (1) or (3) until 7 calendar days’’; 

(3) by striking ‘‘Attorney General’’ each place it appears in paragraphs (3) 

and (4) and inserting ‘‘Secretary of Homeland Security’’; 

(4) in paragraph (5)— 

(A) by striking ‘‘described in this section’’ and inserting ‘‘described in 

paragraph (1) or (2)’’; and 

(B) by striking ‘‘the Attorney General may grant in the Attorney General’s discretion’’ and inserting ‘‘the Secretary of Homeland Security or the 

Attorney General may grant, in the discretion of the Secretary or Attorney 

General, in any proceeding’’; 

(5) by redesignating paragraphs (3), (4), and (5) as paragraphs (4), (5), and 

(6), respectively; and 

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

‘‘(3) The Secretary of Homeland Security in the exercise of discretion may 

determine inadmissibility under section 212(a)(2) (relating to criminal offenses) 

and issue an order of removal pursuant to the procedures set forth in this subsection, in lieu of removal proceedings under section 240, with respect to an 

alien who 

‘‘(A) has not been admitted or paroled; 

‘‘(B) has not been found to have a credible fear of persecution pursuant 

to the procedures set forth in section 235(b)(1)(B); and 

‘‘(C) is not eligible for a waiver of inadmissibility or relief from removal.’’. 

(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect 

on the date of the enactment of this Act but shall not apply to aliens who are in 

removal proceedings under section 240 of the Immigration and Nationality Act as 

of such date 

SEC. 611. TECHNICAL CORRECTION FOR EFFECTIVE DATE IN CHANGE IN INADMISSIBILITY 

FOR TERRORISTS UNDER REAL ID ACT. 

Effective as if included in the enactment of Public Law 109–13, section 103(d)(1) 

of the REAL ID Act of 2005 (division B of such Public Law) is amended by inserting 

‘‘, deportation, and exclusion’’ after ‘‘removal’’. 

SEC. 612. BAR TO GOOD MORAL CHARACTER. 

(a) IN GENERAL.—Section 101(f) of the Immigration and Nationality Act (8 

U.S.C. 1101(f)) is amended— 

(1) by inserting after paragraph (1) the following new paragraph: 

‘‘(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 at any time an alien described in section 212(a)(3) or section 237(a)(4), which determination may be based upon any relevant information or evidence, including classified, sensitive, or national security information, 

and which shall be binding upon any court regardless of the applicable standard 

of review;’’; 

(2) in paragraph (8), by inserting ‘‘, regardless whether the crime was classified as an aggravated felony at the time of conviction’’ after ‘‘(as defined in 

subsection (a)(43))’’; and 

(3) by striking the sentence following paragraph (9) 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 

34 

was not of good moral character. The Secretary and 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.’’. 

(b) AGGRAVATED FELONY EFFECTIVE DATE.—Section 509(b) of the Immigration 

Act of 1990 (Public Law 101–649), as amended by section 306(a)(7) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (Public 

Law 102–232) is amended to read as follows: 

‘‘(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect 

on November 29, 1990, and shall apply to convictions occurring before, on, or after 

such date.’’. 

(c) TECHNICAL CORRECTION TO THE INTELLIGENCE REFORM ACT.—Effective as if 

included in the enactment of the Intelligence Reform and Terrorism Prevention Act 

of 2004 (Public Law 108–458), section 5504(2) of such Act is amended by striking 

‘‘adding at the end’’ and inserting ‘‘inserting immediately after paragraph (8)’’. 

(d) EFFECTIVE DATES.—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, 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 on or after, such date. 

SEC. 613. STRENGTHENING DEFINITIONS OF ‘‘AGGRAVATED FELONY’’ AND ‘‘CONVICTION’’. 

(a) IN GENERAL.—Section 101(a) of the Immigration and Nationality Act (8 

U.S.C. 1101(a)) is amended— 

(1) by amending subparagraph (A) of paragraph (43) to read as follows: 

‘‘(A) murder, manslaughter, homicide, rape, or any sexual abuse of a 

minor, whether or not the minority of the victim is established by evidence 

contained in the record of conviction or by evidence extrinsic to the record 

of conviction;’’; and 

(2) in paragraph (48)(A), by inserting after and below clause (ii) the following: 

‘‘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 

the 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.’’. 

(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall apply to 

any act that occurred before, on, or after the date of the enactment of this Act and 

shall apply to any matter under the immigration laws pending on, or filed on or 

after, such date. 

SEC. 614. DEPORTABILITY FOR CRIMINAL OFFENSES. 

(a) IN GENERAL.—Section 237(a)(3)(B) of the Immigration and Nationality Act 

(8 U.S.C. 1227(a)(3)(B)) is amended— 

(1) in clause (ii), by striking ‘‘or’’ at the end; 

(2) in clause (iii), by inserting ‘‘or’’ at the end; and 

(3) by inserting after clause (iii) the following new clause: 

‘‘(iv) of a violation of, or an attempt or a conspiracy to violate, subsection (a) or (b) of section 1425 of title 18, United States Code,’’. 

(b) DEPORTABILITY; CRIMINAL OFFENSES.—Section 237(a)(2) of such Act (8 

U.S.C. 1227(a)(2)), as amended by section 608(b), is amended by adding at the end 

the following new subparagraph: 

‘‘(G) SOCIAL SECURITY AND IDENTIFICATION FRAUD.—Any alien who at 

any time after admission is convicted of a violation of (or a conspiracy or 

attempt to violate) an offense described in section 208 of the Social Security 

Act or section 1028 of title 18, United States Code is deportable.’’. 

(c) EFFECTIVE DATE.—The amendments made by this section shall apply to any 

act that occurred before, on, or after the date of the enactment of this Act, and to 

all aliens who are required to establish admissibility on or after such date and in 

all removal, deportation, or exclusion proceedings that are filed, pending, or reopened, on or after such date. 

35 

TITLE VII—EMPLOYMENT ELIGIBILITY 

VERIFICATION 

SEC. 701. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM. 

(a) IN GENERAL.—Section 274A(b) of the Immigration and Nationality Act (8 

U.S.C. 1324a(b)) is amended by adding at the end the following: 

‘‘(7) EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.— 

‘‘(A) IN GENERAL.—The Secretary of Homeland Security shall establish 

and administer a verification system through which the Secretary (or a designee of the Secretary, which may be a nongovernmental entity)— 

‘‘(i) responds to inquiries made by persons at any time through a 

toll-free telephone line and other toll-free electronic media concerning 

an individual’s identity and whether the individual is authorized to be 

employed; and 

‘‘(ii) maintains records of the inquiries that were made, of 

verifications provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under 

this section. 

‘‘(B) INITIAL RESPONSE.—The verification system shall provide 

verification or a tentative nonverification of an individual’s identity and employment eligibility within 3 working days of the initial inquiry. If providing verification or tentative nonverification, the verification system shall 

provide an appropriate code indicating such verification or such 

nonverification. 

‘‘(C) SECONDARY VERIFICATION PROCESS IN CASE OF TENTATIVE

NONVERIFICATION.—In cases of tentative nonverification, the Secretary shall 

specify, in consultation with the Commissioner of Social Security, an available secondary verification process to confirm the validity of information 

provided and to provide a final verification or nonverification within 10 

working days after the date of the tentative nonverification. When final 

verification or nonverification is provided, the verification system shall provide an appropriate code indicating such verification or nonverification. 

‘‘(D) DESIGN AND OPERATION OF SYSTEM.—The verification system shall 

be designed and operated— 

‘‘(i) to maximize its reliability and ease of use by persons and other 

entities consistent with insulating and protecting the privacy and security of the underlying information; 

‘‘(ii) to respond to all inquiries made by such persons and entities 

on whether individuals are authorized to be employed and to register 

all times when such inquiries are not received; 

‘‘(iii) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and 

‘‘(iv) to have reasonable safeguards against the system’s resulting 

in unlawful discriminatory practices based on national origin or citizenship status, including— 

‘‘(I) the selective or unauthorized use of the system to verify 

eligibility; 

‘‘(II) the use of the system prior to an offer of employment; or 

‘‘(III) the exclusion of certain individuals from consideration for 

employment as a result of a perceived likelihood that additional 

verification will be required, beyond what is required for most job 

applicants. 

‘‘(E) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL SECURITY.—As 

part of the verification system, the Commissioner of Social Security, in consultation with the Secretary of Homeland Security (and any designee of the 

Secretary selected to establish and administer the verification system), 

shall establish a reliable, secure method, which, within the time periods 

specified under subparagraphs (B) and (C), compares the name and social 

security account number provided in an inquiry against such information 

maintained by the Commissioner in order to validate (or not validate) the 

information provided regarding an individual whose identity and employment eligibility must be confirmed, the correspondence of the name and 

number, and whether the individual has presented a social security account 

number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such verification or 

nonverification) except as provided for in this section or section 205(c)(2)(I) 

of the Social Security Act. 

36 

‘‘(F) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND SECURITY.—(i) 

As part of the verification system, the Secretary of Homeland Security (in 

consultation with any designee of the Secretary selected to establish and 

administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under subparagraphs (B) and 

(C), compares the name and alien identification or authorization number 

which are provided in an inquiry against such information maintained by 

the Secretary in order to validate (or not validate) the information provided, 

the correspondence of the name and number, and whether the alien is authorized to be employed in the United States. 

‘‘(ii) When a single employer has submitted to the verification system 

pursuant to paragraph (3)(A) the identical social security account number 

in more than one instance, or when multiple employers have submitted to 

the verification system pursuant to such paragraph the identical social security account number, in a manner which indicates the possible fraudulent 

use of that number, the Secretary of Homeland Security shall conduct an 

investigation, within the time periods specified in subparagraphs (B) and 

(C), in order to ensure that no fraudulent use of a social security account 

number has taken place. If the Secretary has selected a designee to establish and administer the verification system, the designee shall notify the 

Secretary when a single employer has submitted to the verification system 

pursuant to paragraph (3)(A) the identical social security account number 

in more than one instance, or when multiple employers have submitted to 

the verification system pursuant to such paragraph the identical social security account number, in a manner which indicates the possible fraudulent 

use of that number. The designee shall also provide the Secretary with all 

pertinent information, including the name and address of the employer or 

employers who submitted the relevant social security account number, the 

relevant social security account number submitted by the employer or employers, and the relevant name and date of birth of the employee submitted 

by the employer or employers. 

‘‘(G) UPDATING INFORMATION.—The Commissioner of Social Security 

and the Secretary of Homeland Security shall update their information in 

a manner that promotes the maximum accuracy and shall provide a process 

for the prompt correction of erroneous information, including instances in 

which it is brought to their attention in the secondary verification process 

described in subparagraph (C). 

‘‘(H) LIMITATION ON USE OF THE VERIFICATION SYSTEM AND ANY RELATED SYSTEMS.— 

‘‘(i) IN GENERAL.—Notwithstanding any other provision of law, 

nothing in this paragraph shall be construed to permit or allow any department, bureau, or other agency of the United States Government to 

utilize any information, data base, or other records assembled under 

this paragraph for any other purpose other than as provided for. 

‘‘(ii) NO NATIONAL IDENTIFICATION CARD.—Nothing in this paragraph shall be construed to authorize, directly or indirectly, the 

issuance or use of national identification cards or the establishment of 

a national identification card. 

‘‘(I) FEDERAL TORT CLAIMS ACT.—If an individual alleges that the individual would not have been dismissed from a job but for an error of the 

verification mechanism, the individual may seek compensation only through 

the mechanism of the Federal Tort Claims Act, and injunctive relief to correct such error. No class action may be brought under this subparagraph. 

‘‘(J) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF

INFORMATION.—No person or entity shall be civilly or criminally liable for 

any action taken in good faith reliance on information provided through the 

employment eligibility verification mechanism established under this paragraph.’’. 

(b) REPEAL OF PROVISION RELATING TO EVALUATIONS AND CHANGES IN EMPLOYMENT VERIFICATION.—Section 274A(d) (8 U.S.C. 1324a(d)) is repealed. 

SEC. 702. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS. 

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

amended— 

(1) in subsection (a)(3), by inserting ‘‘(A)’’ after ‘‘DEFENSE.—’’, and by adding 

at the end the following: 

‘‘(B) FAILURE TO SEEK AND OBTAIN VERIFICATION.—In the case of a person 

or entity in the United States that hires, or continues to employ, an individual, 

37 

or recruits or refers an individual for employment, the following requirements 

apply: 

‘‘(i) FAILURE TO SEEK VERIFICATION.— 

‘‘(I) IN GENERAL.—If the person or entity has not made an inquiry, 

under the mechanism established under subsection (b)(7), seeking 

verification of the identity and work eligibility of the individual, by not 

later than the end of 3 working days (as specified by the Secretary of 

Homeland Security) after the date of the hiring, the date specified in 

subsection (b)(8)(B) for previously hired individuals, or before the recruiting or referring commences, the defense under subparagraph (A) 

shall not be considered to apply with respect to any employment, except 

as provided in subclause (II). 

‘‘(II) SPECIAL RULE FOR FAILURE OF VERIFICATION MECHANISM.—If 

such a person or entity in good faith attempts to make an inquiry in 

order to qualify for the defense under subparagraph (A) and the 

verification mechanism has registered that not all inquiries were responded to during the relevant time, the person or entity can make an 

inquiry until the end of the first subsequent working day in which the 

verification mechanism registers no nonresponses and qualify for such 

defense. 

‘‘(ii) FAILURE TO OBTAIN VERIFICATION.—If the person or entity has 

made the inquiry described in clause (i)(I) but has not received an appropriate verification of such identity and work eligibility under such mechanism within the time period specified under subsection (b)(7)(B) after the 

time the verification inquiry was received, the defense under subparagraph 

(A) shall not be considered to apply with respect to any employment after 

the end of such time period.’’; 

(2) by amending subparagraph (A) of subsection (b)(1) to read as follows: 

‘‘(A) IN GENERAL.—The person or entity must attest, under penalty of 

perjury and on a form designated or established by the Secretary by regulation, that it has verified that the individual is not an unauthorized alien 

by— 

‘‘(i) obtaining from the individual the individual’s social security account number and recording the number on the form (if the individual 

claims to have been issued such a number), and, if the individual does 

not attest to United States citizenship under paragraph (2), obtaining 

such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary of Homeland 

Security may specify, and recording such number on the form; and 

‘‘(ii)(I) examining a document described in subparagraph (B); or (II) 

examining a document described in subparagraph (C) and a document 

described in subparagraph (D). 

A person or entity has complied with the requirement of this paragraph 

with respect to examination of a document if the document reasonably appears on its face to be genuine, reasonably appears to pertain to the individual whose identity and work eligibility is being verified, and, if the document bears an expiration date, that expiration date has not elapsed. If an 

individual provides a document (or combination of documents) that reasonably appears on its face to be genuine, reasonably appears to pertain to the 

individual whose identity and work eligibility is being verified, and is sufficient to meet the first sentence of this paragraph, nothing in this paragraph 

shall be construed as requiring the person or entity to solicit the production 

of any other document or as requiring the individual to produce another 

document.’’; 

(3) in subsection (b)(1)(D)— 

(A) in clause (i), by striking ‘‘or such other personal identification information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this section’’; and 

(B) in clause (ii), by inserting before the period ‘‘and that contains a 

photograph of the individual’’; 

(4) in subsection (b)(2), by adding at the end the following: ‘‘The individual 

must also provide that individual’s social security account number (if the individual claims to have been issued such a number), and, if the individual does 

not attest to United States citizenship under this paragraph, such identification 

or authorization number established by the Department of Homeland Security 

for the alien as the Secretary may specify.’’; and 

(5) by amending paragraph (3) of subsection (b) to read as follows: 

‘‘(3) RETENTION OF VERIFICATION FORM AND VERIFICATION.— 

38 

‘‘(A) IN GENERAL.—After completion of such form in accordance with 

paragraphs (1) and (2), the person or entity must— 

‘‘(i) retain a paper, microfiche, microfilm, or electronic version of 

the form and make it available for inspection by officers of the Department of Homeland Security, 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 or the date of the completion of verification of a previously hired individual and ending— 

‘‘(I) in the case of the recruiting or referral of an individual, 

three years after the date of the recruiting or referral; 

‘‘(II) in the case of the hiring of an individual, the later of— 

‘‘(aa) three years after the date of such hiring; or 

‘‘(bb) one year after the date the individual’s employment 

is terminated; and 

‘‘(III) in the case of the verification of a previously hired individual, the later of— 

‘‘(aa) three years after the date of the completion of 

verification; or 

‘‘(bb) one year after the date the individual’s employment 

is terminated; 

‘‘(ii) make an inquiry, as provided in paragraph (7), using the 

verification system to seek verification of the identity and employment 

eligibility of an individual, by not later than the end of 3 working days 

(as specified by the Secretary of Homeland Security) after the date of 

the hiring or in the case of previously hired individuals, the date specified in subsection (b)(8)(B), or before the recruiting or referring commences; and 

‘‘(iii) may not commence recruitment or referral of the individual 

until the person or entity receives verification under subparagraph 

(B)(i) or (B)(iii). 

‘‘(B) VERIFICATION.— 

‘‘(i) VERIFICATION RECEIVED.—If the person or other entity receives 

an appropriate verification of an individual’s identity and work eligibility under the verification system within the time period specified, 

the person or entity shall record on the form an appropriate code that 

is provided under the system and that indicates a final verification of 

such identity and work eligibility of the individual. 

‘‘(ii) TENTATIVE NONVERIFICATION RECEIVED.—If the person or other 

entity receives a tentative nonverification of an individual’s identity or 

work eligibility under the verification system within the time period 

specified, the person or entity shall so inform the individual for whom 

the verification is sought. If the individual does not contest the 

nonverification within the time period specified, the nonverification 

shall be considered final. The person or entity shall then record on the 

form an appropriate code which has been provided under the system 

to indicate a tentative nonverification. If the individual does contest the 

nonverification, the individual shall utilize the process for secondary 

verification provided under paragraph (7). The nonverification will remain tentative until a final verification or nonverification is provided 

by the verification system within the time period specified. In no case 

shall an employer terminate employment of an individual because of a 

failure of the individual to have identity and work eligibility confirmed 

under this section until a nonverification becomes final. Nothing in this 

clause shall apply to a termination of employment for any reason other 

than because of such a failure. 

‘‘(iii) FINAL VERIFICATION OR NONVERIFICATION RECEIVED.—If a final 

verification or nonverification is provided by the verification system regarding an individual, the person or entity shall record on the form an 

appropriate code that is provided under the system and that indicates 

a verification or nonverification of identity and work eligibility of the 

individual. 

‘‘(iv) EXTENSION OF TIME.—If the person or other entity in good 

faith attempts to make an inquiry during the time period specified and 

the verification system has registered that not all inquiries were received during such time, the person or entity may make an inquiry in 

the first subsequent working day in which the verification system registers that it has received all inquiries. If the verification system cannot 

receive inquiries at all times during a day, the person or entity merely 

39 

has to assert that the entity attempted to make the inquiry on that day 

for the previous sentence to apply to such an inquiry, and does not 

have to provide any additional proof concerning such inquiry. 

‘‘(v) CONSEQUENCES OF NONVERIFICATION.— ‘‘(I) TERMINATION OR NOTIFICATION OF CONTINUED EMPLOY- MENT.—If the person or other entity has received a final 

nonverification regarding an individual, the person or entity may 

terminate employment of the individual (or decline to recruit or 

refer the individual). If the person or entity does not terminate employment of the individual or proceeds to recruit or refer the individual, the person or entity shall notify the Secretary of Homeland 

Security of such fact through the verification system or in such 

other manner as the Secretary may specify. 

‘‘(II) FAILURE TO NOTIFY.—If the person or entity fails to provide notice with respect to an individual as required under subclause (I), the failure is deemed to constitute a violation of subsection (a)(1)(A) with respect to that individual. 

‘‘(vi) CONTINUED EMPLOYMENT AFTER FINAL NONVERIFICATION.—If 

the person or other entity continues to employ (or to recruit or refer) 

an individual after receiving final nonverification, a rebuttable presumption is created that the person or entity has violated subsection 

(a)(1)(A).’’. 

SEC. 703. EXPANSION OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM TO PREVIOUSLY 

HIRED INDIVIDUALS AND RECRUITING AND REFERRING. 

(a) APPLICATION TO RECRUITING AND REFERRING.—Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended— 

(1) in subsection (a)(1)(A), by striking ‘‘for a fee’’; 

(2) in subsection (a)(1), by amending subparagraph (B) to read as follows: 

‘‘(B) to hire, continue to employ, or to recruit or refer for employment 

in the United States an individual without complying with the requirements of subsection (b).’’; 

(3) in subsection (a)(2) by striking ‘‘after hiring an alien for employment in 

accordance with paragraph (1),’’ and inserting ‘‘after complying with paragraph 

(1),’’; and 

(4) in subsection (a)(3), as amended by section 702, is further amended by 

striking ‘‘hiring,’’ and inserting ‘‘hiring, employing,’’ each place it appears. 

(b) EMPLOYMENT ELIGIBILITY VERIFICATION FOR PREVIOUSLY HIRED INDIVID- UALS.—Section 274A(b) of such Act (8 U.S.C. 1324a(b)), as amended by section 

701(a), is amended by adding at the end the following new paragraph: 

‘‘(8) USE OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM FOR PREVIOUSLY

HIRED INDIVIDUALS.— ‘‘(A) ON A VOLUNTARY BASIS.—Beginning on the date that is 2 years 

after the date of the enactment of the Border Protection, Antiterrorism, and 

Illegal Immigration Control Act of 2005 and until the date specified in subparagraph (B)(iii), a person or entity may make an inquiry, as provided in 

paragraph (7), using the verification system to seek verification of the identity and employment eligibility of any individual employed by the person 

or entity, as long as it is done on a nondiscriminatory basis. 

‘‘(B) ON A MANDATORY BASIS.— ‘‘(i) A person or entity described in clause (ii) must make an inquiry as provided in paragraph (7), using the verification system to 

seek verification of the identity and employment eligibility of all individuals employed by the person or entity who have not been previously 

subject to an inquiry by the person or entity by the date three years 

after the date of enactment of the Border Protection, Antiterrorism, and 

Illegal Immigration Control Act of 2005. 

‘‘(ii) A person or entity is described in this clause if it is a Federal, 

State, or local governmental body (including the Armed Forces of the 

United States), or if it employs individuals working in a location that 

is a Federal, State, or local government building, a military base, a nuclear energy site, a weapon site, an airport, or that contains critical infrastructure (as defined in section 1016(e) of the Critical Infrastructure 

Protection Act of 2001 (42 U.S.C. 5195c(e))), but only to the extent of 

such individuals. 

‘‘(iii) All persons and entities other than those described in clause 

(ii) must make an inquiry, as provided in paragraph (7), using the 

verification system to seek verification of the identity and employment 

eligibility of all individuals employed by the person or entity who have 

not been previously subject to an inquiry by the person or entity by the 

40 

date six years after the date of enactment of the Border Protection, 

Antiterrorism, and Illegal Immigration Control Act of 2005.’’. 

SEC. 704. BASIC PILOT PROGRAM. 

Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility 

Act of 1996 (8 U.S.C. 1324a note) is amended by striking ‘‘at the end of the 11-year 

period beginning on the first day the pilot program is in effect’’ and inserting ‘‘two 

years after the enactment of the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005’’. 

SEC. 705. HIRING HALLS. 

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

amended by adding at the end the following new paragraph: 

‘‘(4) DEFINITION OF RECRUIT OR REFER.—As used in this section, the term 

‘refer’ means the act of sending or directing a person or transmitting documentation or information to another, directly or indirectly, with the intent of 

obtaining employment in the United States for such person. Generally, only persons or entities referring for remuneration (whether on a retainer or contingency basis) are included in the definition. However, union hiring halls that 

refer union members or nonunion individuals who pay union membership dues 

are included in the definition whether or not they receive remuneration, as are 

labor service agencies, whether public, private, for-profit, or nonprofit, that 

refer, dispatch, or otherwise facilitate the hiring of laborers for any period of 

time by a third party. As used in this section the term ‘recruit’ means the act 

of soliciting a person, directly or indirectly, and referring the person to another 

with the intent of obtaining employment for that person. Generally, only persons or entities recruiting for remunerations (whether on a retainer or contingency basis) are included in the definition. However, union hiring halls that 

refer union members or nonunion individuals who pay union membership dues 

are included in this definition whether or not they receive remuneration, as are 

labor service agencies, whether public, private, for-profit, or nonprofit that recruit, dispatch, or otherwise facilitate the hiring of laborers for any period of 

time by a third party.’’. 

SEC. 706. PENALTIES. 

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

amended— 

(1) in subsection (e)(4)— 

(A) in subparagraph (A), in the matter before clause (i), by inserting ‘‘, 

subject to paragraph (10),’’ after ‘‘in an amount’’; 

(B) in subparagraph (A)(i), by striking ‘‘not less than $250 and not 

more than $2,000’’ and inserting ‘‘not less than $5,000’’; 

(C) in subparagraph (A)(ii), by striking ‘‘not less than $2,000 and not 

more than $5,000’’ and inserting ‘‘not less than $10,000’’; 

(D) in subparagraph (A)(iii), by striking ‘‘not less than $3,000 and not 

more than $10,000’’ and inserting ‘‘not less than $25,000’’; and 

(E) by amending subparagraph (B) to read as follows: 

‘‘(B) may require the person or entity to take such other remedial action as is appropriate.’’; 

(2) in subsection (e)(5)— 

(A) by inserting ‘‘, subject to paragraph (10),’’ after ‘‘in an amount’’; 

(B) by striking ‘‘$100’’ and inserting ‘‘$1,000’’; 

(C) by striking ‘‘$1,000’’ and inserting ‘‘$25,000’’; 

(D) by striking ‘‘the size of the business of the employer being charged, 

the good faith of the employer’’ and inserting ‘‘the good faith of the employer being charged’’; and 

(E) by adding at the end the following sentence: ‘‘Failure by a person 

or entity to utilize the employment eligibility verification system as required by law, or providing information to the system that the person or 

entity knows or reasonably believes to be false, shall be treated as a violation of subsection (a)(1)(A).’’; 

(3) by adding at the end of subsection (e) the following new paragraph: 

‘‘(10) MITIGATION OF CIVIL MONEY PENALTIES FOR SMALLER EMPLOYERS.—In 

the case of imposition of a civil penalty under paragraph (4)(A) with respect to 

a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment by an employer and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring by an employer, the 

dollar amounts otherwise specified in the respective paragraph shall be reduced 

as follows: 

41 

‘‘(A) In the case of an employer with an average of fewer than 26 fulltime equivalent employees (as defined by the Secretary of Homeland Security), the amounts shall be reduced by 60 percent. 

‘‘(B) In the case of an employer with an average of at least 26, but 

fewer than 101, full-time equivalent employees (as so defined), the amounts 

shall be reduced by 40 percent. 

‘‘(C) In the case of an employer with an average of at least 101, but 

fewer than 251, full-time equivalent employees (as so defined), the amounts 

shall be reduced by 20 percent. 

The last sentence of paragraph (4) shall apply under this paragraph in the same 

manner as it applies under such paragraph.’’. 

(4) by amending paragraph (1) of subsection (f) to read as follows: 

‘‘(1) CRIMINAL PENALTY.—Any person or entity which engages in a pattern 

or practice of violations of subsection (a)(1) or (2) shall be fined not more than 

$50,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than one year, or both, notwithstanding the provisions of any other Federal law relating to fine levels.’’; and 

(5) in subsection (f)(2), by striking ‘‘Attorney General’’ each place it appears 

and inserting ‘‘Secretary of Homeland Security’’. 

SEC. 707. REPORT ON SOCIAL SECURITY CARD-BASED EMPLOYMENT ELIGIBILITY 

VERIFICATION. 

(a) REPORT.— (1) IN GENERAL.—Not later than than 9 months after the date of the enactment of this Act, the Commissioner of Social Security, in consultation with the 

Secretary of Treasury, the Secretary of Homeland Security, and the Attorney 

General, shall submit a report to Congress that includes an evaluation of the 

following requirements and changes: 

(A) A requirement that social security cards that are made of a durable 

plastic or similar material and that include an encrypted, machine-readable 

electronic identification strip and a digital photograph of the individual to 

whom the card is issued, be issued to each individual (whether or not a 

United States citizen) who— 

(i) is authorized to be employed in the United States; 

(ii) is seeking employment in the United States; and 

(iii) files an application for such card, whether as a replacement of 

an existing social security card or as a card issued in connection with 

the issuance of a new social security account number. 

(B) The creation of a unified database to be maintained by the Department of Homeland Security and comprised of data from the Social Security 

Administration and the Department of Homeland Security specifying the 

work authorization of individuals (including both United States citizens and 

noncitizens) for the purpose of conducting employment eligibility 

verification. 

(C) A requirement that all employers verify the employment eligibility 

of all new hires using the social security cards described in subparagraph 

(A) and a phone, electronic card-reading, or other mechanism to seek 

verification of employment eligibility through the use of the unified database described in subparagraph (B). 

(2) ITEMS INCLUDED IN REPORT.—The report under paragraph (1) shall include an evaluation of each of the following: 

(A) Projected cost, including the cost to the Federal government, State 

and local governments, and the private sector. 

(B) Administrability. 

(C) Potential effects on— 

(i) employers; 

(ii) employees, including employees who are United States citizens 

as well as those that are not citizens; 

(iii) tax revenue; and 

(iv) privacy. 

(D) The extent to which employer and employee compliance with immigration laws would be expected to improve. 

(E) Any other relevant information. 

(3) ALTERNATIVES.—The report under paragraph (1) also shall examine any 

alternatives to achieve the same goals as the requirements and changes described in paragraph (1) but that involve lesser cost, lesser burden on those affected, or greater ease of administration. 

(b) INSPECTOR GENERAL REVIEW.—Not later than 3 months after the report is 

submitted under subsection (a), the Inspector General of the Social Security Administration, in consultation with the Inspectors General of the Department of TreasVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00045 Fmt 6659 Sfmt 6621 E:\HR\OC\HR345P1.XXX HR345P1
42 

ury, the Department of Homeland Security, and the Department of Justice, shall 

send to the Congress an evaluation of the such report. 

SEC. 708. EFFECTIVE DATE. 

This title and the amendments made by this title shall take effect on the date 

of enactment of this Act, except that the requirements of persons and entities to 

comply with the employment eligibility verification process takes effect on the date 

that is two years after such date. 

TITLE VIII—IMMIGRATION LITIGATION ABUSE 

REDUCTION 

SEC. 801. BOARD OF IMMIGRATION APPEALS REMOVAL ORDER AUTHORITY. 

(a) IN GENERAL.—Section 101(a)(47) of the Immigration and Nationality Act (8 

U.S.C. 1101(a)(47)) is amended to read as follows: 

‘‘(47)(A) The term ‘order of removal’ means the order of the immigration judge, 

the Board of Immigration Appeals, or other administrative officer to whom the Attorney General or the Secretary of Homeland Security has delegated the responsibility for determining whether an alien is removable, concluding that the alien is 

removable or ordering removal. 

‘‘(B) The order described under subparagraph (A) shall become final upon the 

earliest of— 

‘‘(i) a determination by the Board of Immigration Appeals affirming such 

order; 

‘‘(ii) the entry by the Board of Immigration Appeals of such order; 

‘‘(iii) the expiration of the period in which any party is permitted to seek 

review of such order by the Board of Immigration Appeals; 

‘‘(iv) the entry by an immigration judge of such order, if appeal is waived 

by all parties; or 

‘‘(v) the entry by another administrative officer of such order, at the conclusion of a process as authorized by law other than under section 240.’’. 

(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect 

on the date of the enactment of this Act and shall apply to ordered entered before, 

on, or after such date. 

SEC. 802. 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 amending the last sentence to read as follows: ‘‘Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or 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.’’. 

(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect 

on the date of the enactment of this Act and shall apply to visa revocations effected 

before, on, or after such date. 

SEC. 803. REINSTATEMENT. 

(a) IN GENERAL.—Section 241(a)(5) of the Immigration and Nationality Act (8 

U.S.C. 1231(a)(5)) is amended to read as follows: 

‘‘(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS ILLEGALLY REENTERING.—If the Secretary of Homeland Security finds that an alien has entered 

the United States illegally after having been removed or having departed voluntarily, under an order of removal, deportation, or exclusion, regardless of the 

date of the original order or the date of the illegal entry— 

‘‘(A) the order of removal, deportation, or exclusion is reinstated from 

its original date and is not subject to being reopened or reviewed; 

‘‘(B) the alien is not eligible and may not apply for any relief under this 

Act, regardless of the date that an application for such relief may have been 

filed; and 

‘‘(C) the alien shall be removed under the order of removal, deportation, 

or exclusion at any time after the illegal entry. 

Reinstatement under this paragraph shall not require proceedings before an immigration judge under section 240 or otherwise.’’. 

(b) JUDICIAL REVIEW.—Section 242 of the Immigration and Nationality Act (8 

U.S.C. 1252) is amended by adding at the end the following new subsection: 

‘‘(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER SECTION 241(a)(5).— 

43 

‘‘(1) IN GENERAL.—Notwithstanding any other provision of law (statutory or 

nonstatutory), including section 2241 of title 28, United States Code, or any 

other habeas corpus provision, sections 1361 and 1651 of such title, or subsection (a)(2)(D) of this section, no court shall have jurisdiction to review any 

cause or claim arising from or relating to any reinstatement under section 

241(a)(5) (including any challenge to the reinstated order), except as provided 

in paragraph (2) or (3). 

‘‘(2) CHALLENGES IN COURT OF APPEALS FOR DISTRICT OF COLUMBIA TO VA- LIDITY OF THE SYSTEM, ITS IMPLEMENTATION, AND RELATED INDIVIDUAL DETER- MINATIONS.— 

‘‘(A) IN GENERAL.—Judicial review of determinations under section 

241(a)(5) and its implementation is available in an action instituted in the 

United States Court of Appeals for the District of Columbia Circuit, but 

shall be limited, except as provided in subparagraph (B), to the following 

determinations: 

‘‘(i) Whether such section, or any regulation issued to implement 

such section, is constitutional. 

‘‘(ii) Whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General or the Secretary of Homeland Security 

to implement such section, is not consistent with applicable provisions 

of this Act or is otherwise in violation of a statute or the Constitution. 

‘‘(B) RELATED INDIVIDUAL DETERMINATIONS.—If a person raises an action under subparagraph (A), the person may also raise in the same action 

the following issues: 

‘‘(i) Whether the petitioner is an alien. 

‘‘(ii) Whether the petitioner was previously ordered removed or deported, or excluded. 

‘‘(iii) Whether the petitioner has since illegally entered the United 

States. 

‘‘(C) DEADLINES FOR BRINGING ACTIONS.—Any action instituted under 

this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in 

clause (i) or (ii) of subparagraph (A) is first implemented. 

‘‘(3) INDIVIDUAL DETERMINATIONS UNDER SECTION 242(a).—Judicial review of 

determinations under section 241(a)(5) is available in an action under subsection (a) of this section, but shall be limited to determinations of— 

‘‘(A) whether the petitioner is an alien; 

‘‘(B) whether the petitioner was previously ordered removed, deported, 

or excluded; and 

‘‘(C) whether the petitioner has since illegally entered the United 

States. 

‘‘(4) SINGLE ACTION.—A person who files an action under paragraph (2) may 

not file a separate action under paragraph (3). A person who files an action 

under paragraph (3) may not file an action under paragraph (2).’’. 

(c) EFFECTIVE DATE.—The amendments made by subsections (a) and (b) shall 

take effect as if enacted on April 1, 1997, and shall apply to all orders reinstated 

on or after that date by the Secretary of Homeland Security (or by the Attorney 

General prior to March 1, 2003), regardless of the date of the original order. 

SEC. 804. WITHHOLDING OF REMOVAL. 

(a) IN GENERAL.—Section 241(b)(3) of the Immigration and Nationality Act (8 

U.S.C 1231(b)(3)) is amended— 

(1) in subparagraph (A), by adding at the end the following: ‘‘The burden 

of proof is on the alien to establish that the alien’s life or freedom would be 

threatened in that country, and that race, religion, nationality, membership in 

a particular social group, or political opinion would be at least one 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 included in the enactment of section 101(c) of the REAL ID Act of 2005 (division B of Public Law 109–13). 

SEC. 805. CERTIFICATE OF REVIEWABILITY. 

(a) ALIEN’S BRIEF.—Section 242(b)(3)(C) of the Immigration and Nationality Act 

(8 U.S.C. 1252(b)(3)(C)) is amended to read as follows: 

‘‘(C) ALIEN’S BRIEF.—The alien shall serve and file a brief in connection 

with a petition for judicial review not later than 40 days after the date on 

44 

which the administrative record is available. The court may not extend this 

deadline except upon motion for good cause shown. If an alien fails to file 

a brief within the time provided in this paragraph, the court shall dismiss 

the appeal unless a manifest injustice would result.’’. 

(b) CERTIFICATE OF REVIEWABILITY.—Section 242(b)(3) of such Act (8 U.S.C. 

1252 (b)(3)) is amended by adding at the end the following new subparagraphs: 

‘‘(D) CERTIFICATE.— ‘‘(i) After the alien has filed the alien’s brief, the petition for review 

shall be assigned to a single court of appeals judge. 

‘‘(ii) Unless that court of appeals judge or a circuit justice issues 

a certificate of reviewability, the petition for review shall be denied and 

the government shall not file a brief. 

‘‘(iii) A certificate of reviewability may issue under clause (ii) only 

if the alien has made a substantial showing that the petition for review 

is likely to be granted. 

‘‘(iv) The court of appeals judge or circuit justice shall complete all 

action on such certificate, including rendering judgment, not later than 

60 days after the date on which the judge or circuit justice was assigned the petition for review, unless an extension is granted under 

clause (v). 

‘‘(v) The judge or circuit justice may grant, on the judge’s or justice’s own motion or on the motion of a party, an extension of the 60- 

day period described in clause (iv) if— 

‘‘(I) all parties to the proceeding agree to such extension; or 

‘‘(II) such extension is for good cause shown or in the interests 

of justice, and the judge or circuit justice states the grounds for the 

extension with specificity. 

‘‘(vi) If no certificate of reviewability is issued before the end of the 

period described in clause (iv), including any extension under clause (v), 

the petition for review shall be deemed denied, any stay or injunction 

on petitioner’s removal shall be dissolved without further action by the 

court or the government, and the alien may be removed. 

‘‘(vii) If a certificate of reviewability is issued under clause (ii), the 

Government shall be afforded an opportunity to file a brief in response 

to the alien’s brief. The alien may serve and file a reply brief not later 

than 14 days after service of the Government’s brief, and the court may 

not extend this deadline except upon motion for good cause shown. 

‘‘(E) NO FURTHER REVIEW OF THE COURT OF APPEALS JUDGE’S DECISION

NOT TO ISSUE A CERTIFICATE OF REVIEWABILITY.—The single court of appeals 

judge’s decision not to issue a certificate of reviewability, or the denial of 

a petition under subparagraph (D)(vi), shall be the final decision for the 

court of appeals and shall not be reconsidered, reviewed, or reversed by the 

court of appeals through any mechanism or procedure.’’. 

(c) EFFECTIVE DATE.—The amendments made by this section shall apply to petitions filed on or after the date that is 60 days after the date of the enactment of 

this Act. 

SEC. 806. WAIVER OF RIGHTS IN NONIMMIGRANT VISA ISSUANCE. 

(a) IN GENERAL.—Section 221(a) of the Immigration and Nationality Act (8 

U.S.C. 1201(a)) is amended by adding at the end the following new paragraph: 

‘‘(3) An alien may not be issued a nonimmigrant visa unless the alien has 

waived any right— 

‘‘(A) to review or appeal under this Act of an immigration officer’s determination as to the inadmissibility of the alien at the port of entry into the 

United States; or 

‘‘(B) to contest, other than on the basis of an application for asylum, any 

action for removal of the alien.’’. 

(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply to 

visas issued on or after the date that is 90 days after the date of the enactment 

of this Act. 

PURPOSE AND SUMMARY

The purpose of H.R. 4437, the ‘‘Border Protection, Antiterrorism, 

and Illegal Immigration Control Act of 2005,’’ is to ensure the proper enforcement of the current immigration laws, create additional 

mechanisms to prevent illegal immigration, assist in the prohibition of hiring illegal immigrants, and to enhance border security. 

45 

1See Steven Camarota, Immigrants at Mid-Decade: A Snapshot of America’s Foreign-Born 

Population in 2005, 2005 Center for Immigration Studies 23 (nearly 11 million in March 2005); 

Jeffrey Passel, Estimates of the Size and Characteristics of the Undocumented Population, 2005 

Pew Hispanic Center 1 (10.3 million in March 2004, estimate of nearly 11 million in March 

2005). 2See Immigrants at Mid-Decade at 4 (the total resident illegal alien population increased by 

about 2.5 to 2.7 million between March 2000 and March 2005; new illegal alien arrivals comprised 3.6 to 3.8 million persons). 3See, e.g., Immigration and the Alien Gang Epidemic: Problems and Solutions: Hearing Before 

the Subcomm. on Immigration, Border Security and Claims of the House Comm. on the Judiciary, 109th Cong. (2005); Heather MacDonald, The Immigrant Gang Plague, the City Journal, 

Summer 2004; Heather MacDonald, The Illegal-Alien Crime Wave, The City Journal, Winter 

2004. 4See Paige Harrison and Jennifer Karberg, Prison and Jail Inmates at Midyear 2003, Bureau 

of Justice Statistics Bulletin at 5 (May 2004)(23.5 percent of all Federal inmates were noncitizens as of June 30, 2003). 5Pub. L. No. 99–603. 

6See Jeffrey Passel, Unauthorized Migrants: Numbers and Characteristics, 2005 Pew Hispanic 

Center 27, 29 (2004 figures). 7Pub. L. No. 108–458. 

8 Enforcement of ‘‘employer sanctions,’’ while always spotty, declined in the latter years of the 

Clinton Administration after a 1999 interior enforcement strategy delegated it to the lowest 

Continued 

BACKGROUND AND NEED FOR THE LEGISLATION

The number of resident illegal aliens in the United States is estimated to be about 11 million,1 and approximately 500,000 illegal 

aliens enter the country unlawfully each year.2 The United States 

has experienced a drastic increase in crime committed by illegal 

aliens, particularly by illegal aliens that are members of criminal 

gangs. These criminal alien gangs are becoming increasingly prevalent throughout the country.3 This disturbing trend is evidenced by 

the growing number of Federal inmates who are non-citizens, 

which is rapidly approaching 25 percent of the prison population.4

Despite the enactment of the Immigration Reform and Control 

Act of 1986,5 which made it unlawful for an employer to knowingly 

employ illegal aliens and established an employment eligibility 

verification system for new hires, illegal aliens comprise a significant portion of the employed population. Estimates of the number 

of illegal immigrants employed in various industries include: 17 

percent of workers in building cleaning and maintenance occupations; 14 percent of private household workers; 13 percent of accommodation industry workers; 13 percent of food manufacturing 

industry workers; 12 percent of the workers in construction and extractive occupations (and 10 percent of workers in the construction 

industry); 11 percent of workers in food preparation and serving occupations (and 10 percent of workers in the food service industry); 

8 percent of workers in production occupations (and 6 percent of 

workers in the manufacturing industry); and 4.3 percent of workers 

in the overall workforce.6

The presence of large numbers of illegal aliens in the United 

States demonstrates that America’s immigration laws are not being 

effectively enforced. A contributing factor to this lack of enforcement has been deficient resources. Congress responded to this inadequacy by including provisions in the Intelligence Reform and 

Terrorism Prevention Act of 2004 7 that authorized over a 5-year 

period an additional 10,000 Border Patrol agents, an increase of 

40,000 immigration detention beds, and an additional 4,000 immigration investigators. Another factor that has contributed to the 

large number of illegal aliens within the United States is a lack of 

strong enforcement priorities by current and past administrations.8

46 

rung of priority. Enforcement has since plummeted still further. The total hours worked by investigators on employer sanctions cases fell from almost 714,000 in 1997 to 135,000 in 2004, 

a drop of 81 percent. The number of notices of intent to fine employers for violations fell from 

1461 in 1992 to 3 in 2004, a drop of 99 percent. The number of arrests of illegal alien employees 

fell from 17,552 in 1997 to 445 in 2003, a drop of 97 percent. See Lack of Worksite Enforcement 

and Employer Sanctions: Hearing Before the Subcomm. on Immigration, Border Security and 

Claims of the House Comm. on the Judiciary, 109th Cong. (2005). 9 In the Homeland Security Act of 2002, Congress created a Bureau of Border Security that 

was to carry out the five immigration enforcement functions—the Border Patrol, detention and 

removal, intelligence, investigations, and inspections at ports-of-entry—and not suffer from the 

INS’s mission overload. See sections 441 and 442 of Pub. Law. No. 107–296. When the Department of Homeland Security was created, however, immigration functions were split into borderrelated functions to be carried out by the Bureau of Customs and Border Protections and interior-related functions to be carried out by the Bureau of Immigration and Customs Enforcement. 

In addition, each of these two agencies was also burdened with carrying out customs law enforcement and other responsibilities. The result has been devastating for immigration enforcement. Most leadership positions, both in Washington and in local offices, were given to legacy 

Customs Bureau officials, and, not surprisingly, immigration enforcement has been relegated to 

the lowest rung of priority and has been deprived of requisite resources and organizational 

unity. Dedicated and experienced immigration enforcement professionals have left in droves. See 

New ‘‘Dual Missions’’ of the Immigration Enforcement Agencies: Hearing Before the Subcomm. 

on Immigration, Border Security and Claims of the House Comm. on the Judiciary, 109th Cong. 

(2005). 10Division C of title III of Pub. L. No. 104–208. 11Division B of Pub. L. No. 109–13. 

In addition, the incoherent organizational structure of immigration 

enforcement offices within the Department of Homeland Security 

has played a role in the lack of enforcement.9 Despite the great 

strides over the last decade that resulted from the enactment of 

legislation such as the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996,10 and the REAL ID Act of 2005,11 significant changes to current immigration law are necessary to restore accountability for those who violate immigration laws, ensure 

the prevention of future illegal immigration, and to combat the rising prevalence of criminal behavior by illegal aliens. The ‘‘Border 

Protection, Antiterrorism, and Illegal Immigration Control Act of 

2005’’ contains measures that address these important concerns. 

HEARINGS

The Committee on the Judiciary held no hearings on H.R. 4437. 

COMMITTEE CONSIDERATION

On December 8, 2005, the Committee met in open session and 

ordered favorably reported the bill H.R. 4437 with an amendment 

by a recorded vote of 23–15, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of Rule XIII of the Rules of the 

House of Representatives, the Committee sets forth the following 

rollcall votes that occurred during the Committee’s consideration of 

H.R. 4437: 

1. Rollcall number one was an amendment offered by Rep. Scott 

(VA) to strike the mandatory minimum sentences contained in the 

bill. This amendment was not agreed to by a rollcall vote of 12 ayes 

to 20 nays. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

47 

ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Coble ........................................................................................................... X 

Mr. Smith (Texas) ............................................................................................. X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Lungren ....................................................................................................... X 

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon ....................................................................................................... X 

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Mr. Issa ............................................................................................................. X 

Mr. Flake ........................................................................................................... X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes .........................................................................................................

Mr. King ............................................................................................................ X 

Mr. Feeney ......................................................................................................... X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Conyers ....................................................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X 

Mr. Delahunt .....................................................................................................

Mr. Wexler ......................................................................................................... X 

Mr. Weiner ......................................................................................................... X 

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Van Hollen .................................................................................................. X 

Ms. Wasserman Schultz ....................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 12 20 

2. Rollcall number two was an amendment offered by Rep. Berman to create an H-5A ‘‘essential worker’’ temporary work visa program, to create an H-5B temporary work visa program for aliens 

unlawfully present and employed in the United States on the date 

of enactment, and to provide for the adjustment of status to permanent residence for such aliens upon the meeting of certain conditions. This amendment was not agreed to by a rollcall vote of 13 

ayes to 22 nays and one member voting present. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X 

Mr. Coble ........................................................................................................... X 

Mr. Smith (Texas) ............................................................................................. X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Lungren ....................................................................................................... X 

Mr. Jenkins ........................................................................................................ X 

48 

ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Cannon ....................................................................................................... X 

Mr. Bachus ........................................................................................................ X 

Mr. Inglis ........................................................................................................... X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Mr. Issa ............................................................................................................. X 

Mr. Flake ........................................................................................................... X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Feeney ......................................................................................................... X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Conyers ....................................................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X 

Mr. Wexler ......................................................................................................... X 

Mr. Weiner ......................................................................................................... X 

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Van Hollen .................................................................................................. X 

Ms. Wasserman Schultz ....................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 13 22 1 

3. Rollcall number three was a vote on final passage of the bill 

as amended. The bill was reported favorably, as amended, by a rollcall vote of 23 ayes to 15 nays. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X 

Mr. Coble ........................................................................................................... X 

Mr. Smith (Texas) ............................................................................................. X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Lungren ....................................................................................................... X 

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon ....................................................................................................... X 

Mr. Bachus ........................................................................................................ X 

Mr. Inglis ........................................................................................................... X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Mr. Issa ............................................................................................................. X 

Mr. Flake ........................................................................................................... X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Feeney ......................................................................................................... X 

Mr. Franks ......................................................................................................... X 

49 

ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Mr. Gohmert ...................................................................................................... X 

Mr. Conyers ....................................................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X 

Mr. Wexler ......................................................................................................... X 

Mr. Weiner ......................................................................................................... X 

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Van Hollen .................................................................................................. X 

Ms. Wasserman Schultz .................................................................................... X 

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 23 15 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of Rule XIII of the Rules of the House of Representatives is inapplicable because the provisions of this legislation within the jurisdiction of the Judiciary Committee do not provide new budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 4437, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, December 13, 2005. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has completed the enclosed cost estimate for H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. 

50 

The CBO staff contact for this estimate is Mark Grabowicz, who 

can be reached at 226–2860. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 4437—Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. 

SUMMARY

H.R. 4437 would direct the Department of Homeland Security 

(DHS) and the Social Security Administration (SSA) to extend and 

expand a system to verify the eligibility of certain people for employment in the United States. The bill also would require DHS to 

reimburse counties along the southern U.S. border for costs relating to the detention of illegal aliens, increase the number of border 

inspection personnel, deploy radiation portal monitors at ports of 

entry, and establish an Office of Air and Marine Operations within 

DHS. The bill would establish mandatory minimum prison sentences for a number of offenses relating to illegal entry into the 

United States and would establish civil and criminal penalties for 

such crimes. Finally, H.R. 4437 would make many other amendments to current law and changes to existing DHS procedures that 

aim to increase the security of U.S. borders. 

CBO estimates that implementing H.R. 4437 would cost about 

$1.9 billion over the 2006–2010 period, assuming appropriation of 

the necessary amounts. Such costs would continue and grow significantly after 2010 as additional requirements of the bill would 

be implemented. Enacting the bill could affect direct spending and 

revenues, but we estimate that any such effects would not be significant. 

H.R. 4437 would impose intergovernmental and private-sector 

mandates, as defined in the Unfunded Mandates Reform Act 

(UMRA), on employers and other entities that hire, recruit, or refer 

individuals for employment. CBO expects that the aggregate direct 

costs to comply with those mandates would exceed the annual 

threshold for both intergovernmental and private-sector mandates 

($62 million for intergovernmental mandates in 2005 and $123 million for private-sector mandates in 2005, adjusted annually for inflation) in at least one of the first five years the bill is in effect. 

Other provisions of the bill contain no intergovernmental or private-sector mandates; some would benefit local governments. 

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 4437 is shown in the following table. The cost of this legislation falls within budget functions 650 (Social Security) and 750 (administration of justice). 

51 

BASIS OF ESTIMATE

For this estimate, CBO assumes that the bill will be enacted 

near the start of calendar year 2006 and that the amounts necessary to implement the bill will be appropriated for each year. 

CBO estimates that implementing H.R. 4437 would cost about $1.9 

billion over the 2006–2010 period, assuming appropriation of the 

necessary funds. Enacting the bill also could affect direct spending 

and revenues, but we estimate that any such effects would not be 

significant. 

Spending Subject to Appropriation 

We assume that the necessary amounts will be appropriated by 

the start of each fiscal year after 2006, that supplemental appropriations will be provided early in calendar year 2006 for initial 

program needs, and that spending will follow the historical spending patterns for these or similar activities. 

Employment Eligibility Verification System. H.R. 4437 

would direct DHS, within two years of the bill’s enactment, to exVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00055 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

37CBO.eps
52 

tend and expand a system to verify the eligibility of persons for employment in the United States. CBO estimates that this would cost 

about $405 million over the 2006–2010 period, including $185 million for DHS, $200 million for SSA, and $20 million for other Federal agencies. 

Requirements of H.R. 4437. DHS and SSA currently operate an 

employment eligibility verification system known as the basic pilot. 

This system is available to employers nationwide, but its use is voluntary and is restricted to checking the status of new hires. All inquiries to that system are handled through the Internet, and the 

pilot program expires in late 2008. H.R. 4437 would require DHS 

to set up a toll-free telephone line or other toll-free electronic media 

to respond within three working days to inquiries from employers 

seeking verification of employment eligibility and would require the 

department to maintain records of all inquiries and responses. 

The bill would require all employers to use the new system for 

newly hired employees upon its establishment. Within three years 

of the bill’s enactment (in 2009), Federal, State, and local governments, as well as certain other private employers, would have to 

use the system to check the eligibility of all of their employees (i.e., 

both new hires and the existing workforce). Within six years of enactment (in 2012), all other employers would have to do so for all 

of their workforces. 

Number of Inquiries Expected. According to the Bureau of Labor 

Statistics (BLS), new hires at nonfarm establishments average 

about 4.6 million each month, or about 50 million to 55 million at 

an annual rate. (That does not mean that 50 million people change 

jobs every year because some people change jobs several times in 

a year. Nevertheless, each new hire would—after mid-2008—go 

through the employment verification system proposed in H.R. 

4437.) The annual volume of new hires will equal about 55 million 

to 60 million in 2008 through 2015, CBO assumes. Employees of 

Federal, State, and local governments and certain other sectors— 

chiefly, nongovernment employees who work at Government installations, airports, nuclear power facilities, and ‘‘critical infrastructure’’ facilities—would become subject to verification in 2009; CBO 

estimates that would be about 25 million people. Finally, all other 

employees would become subject to verification under the bill in 

2012, six years after enactment. CBO estimates that about 120 million employees would need to have their eligibility to work in the 

U.S. verified by 2012, although many of those people would have 

been newly hired after 2008 and would thus represent repeat cases. 

Those figures represent lower-bound estimates of the total volume 

of verifications because the BLS data on which they are based omit 

agricultural employment. 

Costs to DHS. Under the bill, DHS would have primary responsibility for establishing and maintaining the system. Based on information from DHS, CBO estimates that it would cost the department about $100 million over the 2006–2008 period for upgrades 

to the basic pilot system to handle the huge increase in inquiries 

that would result from H.R. 4437. This one-time cost would include 

enhancements of software, hardware, databases, and other technological components of the new employment eligibility system. 

In addition, DHS would have to hire personnel to respond to inquiries within three working days (as required by the bill), staff the 

53 

toll-free telephone line, and maintain records of the inquiries and 

responses. Based on information from DHS, CBO expects that staff 

would be hired during 2008 and costs would reach $35 million annually, beginning in fiscal year 2009. Under the bill, the agency’s 

cost to process employment verification inquiries would increase 

substantially after 2010 when all private employers would be required to check the eligibility of their entire workforce by 2012. 

Costs to SSA. The SSA’s responsibilities under the bill would include providing DHS with continued, secure access to its database 

of Social Security numbers and handling phone inquiries, personal 

visits, and requests for replacement cards from people seeking to 

clear a ‘‘nonverified’’ response to their current or prospective employer. Based on information from the agency, CBO estimates 

SSA’s costs at $9 million in 2006, about $200 million over the 

2006–2010 period, and about $640 million over the 2006–2015 period. Under the bill, the agency’s cost to process employment 

verification inquiries would increase substantially after 2010 when 

all private employers would be required to check the eligibility of 

their entire workforce by 2012. 

Costs to Other Federal Agencies. Finally, Federal agencies themselves would be among the employers required to verify the legal 

status of their workforce in 2009, three years after the bill’s enactment. There are slightly over 4 million Federal Government employees, including military personnel on active duty. CBO assumes 

that it would cost agencies an average of $4 per employee to comply with the verification requirement. (The requirement would 

apply even if agencies had previously performed a security clearance or other exhaustive check.) That cost, incurred by agencies’ 

personnel offices, consists of assembling the data for initial submission and following up the relatively few, but labor-intensive, cases 

that the automated system would initially fail to match. CBO estimates that Federal agencies would spend approximately $18 million in 2009 to submit their employees’ basic data to the DHS system and to reconcile the new cases that would be returned as 

‘‘nonverifiable.’’ The Federal Government would also spend an estimated $1 million annually to verify its new hires through the automated system. 

Payments to Counties Along Southern U.S. Border. H.R. 

4437 would direct DHS to reimburse counties within 25 miles of 

the southern U.S. border for the costs of detaining, housing, and 

transporting illegal aliens. The bill would authorize funding of up 

to $100 million annually for such reimbursements. Based on the 

costs reported by these counties in recent years for the detention 

and housing of illegal aliens, CBO estimates that implementing 

this provision would cost $100 million for each of fiscal years 2007 

through 2010. 

Federal Prison System. H.R. 4437 would establish mandatory 

minimum prison sentences for a wide range of offenses involving 

illegal entry into the United States. The U.S. Sentencing Commission analyzed the bill’s impact on the Federal prison population. 

Based on this analysis, CBO estimates that the longer sentences 

required under the bill would increase the prison population by 

about 7,000 person-years over the 2006–2010 period. According to 

the Bureau of Prisons, for an increase in the Federal prison population of this magnitude, it would spend about $24,000 a year (at 

54 

2005 prices) to house each additional prisoner. CBO estimates that 

the cost to support those additional prisoners would total $170 million over the 2006–2010 period. 

In addition, according to the Bureau of Prisons, construction of 

a new prison would be required when the annual increase in the 

prison population exceeds 1,150. Based on the anticipated increase 

in the cumulative prison population over the 2006–2010 period, we 

estimate that this annual threshold would be exceeded in 2008 and 

2010. Thus, CBO expects two new prisons would need to be built 

to accommodate the additional prisoners resulting from enactment 

of H.R. 4437. We estimate that each facility would cost $115 million, construction would begin in 2008, and some spending would 

occur after 2010. 

Additional Port-of-Entry Inspectors and Canine Detection 

Teams. H.R. 4437 would direct DHS to increase the number of 

port-of-entry inspectors by 250 in each of fiscal years 2007 through 

2010. Currently, there are about 19,000 inspectors, so this would 

represent an increase of just over 1 percent annually. In addition, 

for each of fiscal years 2007 through 2011, the bill would require 

DHS to increase the number of canine detection teams by at least 

25 percent over the number of such positions for the preceding 

year. (Currently, there are a total of 647 canine detection teams, 

each consisting of one officer and one dog.) 

Based on information from DHS, CBO estimates that it costs 

about $100,000 a year to hire an additional inspector and $130,000 

a year for each new canine detection team, including salaries, benefits, training, and support costs. Assuming that each annual cohort 

required by the bill would be hired over the course of a year, we 

estimate that implementing this provision would cost $400 million 

over the 2007–2010 period, with spending split evenly between the 

inspectors and the canine detection teams. 

Radiation Portal Monitors at Ports of Entry. H.R. 4437 

would direct DHS, within one year of the bill’s enactment, to deploy radiation portal monitors at U.S. ports of entry selected by the 

agency to facilitate the screening of inbound cargo for concealed nuclear and radiological material. Based on information from DHS, 

we expect that the agency would implement the bill by deploying 

such monitors at all U.S. ports. 

According to DHS, there are 613 radiation portal monitors currently deployed at 110 points of entry in 85 U.S. ports, leaving a 

total of 270 points of entry that lack these devices. Because the 

unmonitored ports generally experience lesser volumes of inbound 

cargo, CBO assumes that remaining points of entry would need, on 

average, four monitors. The radiation portal monitors that are currently used cost $280,000 each, but a more effective device is now 

available at a cost of $470,000 per unit. 

Assuming that the roughly 1,000 additional monitors required to 

implement H.R. 4437 would include approximately equal numbers 

of monitors of each type ($280,000 and $470,000 models), the costs 

to deploy the monitors at the remaining ports would be about $400 

million. However, because $125 million has already been appropriated for fiscal year 2006 for monitors, we estimate that implementing H.R. 4437 would cost about $280 million over the 2006– 

2007 period. 

55 

In addition, we expect that there would be some maintenance 

and replacement costs for those monitors in subsequent years. CBO 

estimates that such costs would probably be no more than 10 percent of the initial cost of the new monitors, or about $20 million 

annually. 

Office of Air and Marine Operations. H.R. 4437 would establish an Office of Air and Marine Operations within DHS that would 

be headed by an Assistant Secretary who would report directly to 

the Secretary of Homeland Security. We expect that this office 

would consist of about 1,200 personnel currently in the Bureau of 

Customs and Border Protection who direct and carry out aviation 

and marine operations. 

As a new agency within DHS, the Office of Air and Marine Operations would need its own human resources, legal, finance, technical support, and other administrative offices. Based on the number of support personnel at other Federal agencies that employ between 1,000 and 2,000 persons, CBO estimates that it would cost 

about $16 million annually for these functions, beginning in fiscal 

year 2007. This estimated annual cost represents about 10 percent 

of current spending for the transferred personnel and assumes that 

some existing administrative staff would be transferred to the new 

office. In addition, we estimate that there would be one-time costs 

of about $4 million to relocate personnel and carry out other activities necessary to establish a new agency within DHS. 

Additional Funding for Inspector General. H.R. 4437 would 

authorize the appropriation of sums necessary to increase funding 

above the current level for the DHS Office of the Inspector General 

(IG) by 5 percent for fiscal year 2007, 6 percent for 2008, and 7 percent for 2009. For fiscal year 2006, $83 million was appropriated 

for the IG. We estimate that implementing this provision for increases in IG funding would cost $4 million in 2007, $5 million in 

2008, and $6 million in 2009. 

Other Programs. H.R. 4437 would direct DHS to establish a 

university-based Center of Excellence for Border Security. Based on 

spending for similar university programs already established by 

DHS, we estimate that implementing this provision would require 

funding of about $5 million annually, beginning in fiscal year 2007. 

In addition, the bill would require DHS and the Government Accountability Office to prepare various reports relating to improving 

border security. The bill would also direct SSA to study possible enhancements to Social Security cards, such as making them of durable plastic and adding a machine-readable identification strip and 

a digital photograph of the holder. (An earlier SSA study, published 

in 1997, estimated total costs of $5 billion to $10 billion, depending 

on the features chosen, for replacing the 277 million cards then in 

circulation.) CBO estimates that the costs to prepare these reports 

would total about $2 million. 

Border Patrol in Virgin Islands. H.R. 4312 would direct DHS, 

by September 30, 2006, to establish at least one border patrol unit 

for the U.S. Virgin Islands. However, the Department of Homeland 

Security Appropriations Act, 2006 (Public Law 109–90) already directs DHS to determine whether or not a border patrol unit in the 

Virgin Islands is necessary and, if deemed necessary, to establish 

such a unit by March 1, 2006. CBO cannot predict whether this 

unit will be established under Public Law 109–90. Based on inforVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00059 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
56 

mation from DHS, however, CBO expects that a unit in the Virgin 

Islands would probably cost no more than $1 million annually. 

Direct Spending and Receipts 

H.R. 4437 would establish new and increased civil and criminal 

penalties for various crimes involving illegal immigration. Thus, 

the Federal Government might collect additional fines if the bill is 

enacted. Collections of civil fines are recorded in the budget as revenues. Criminal fines are recorded as revenues, then deposited in 

the Crime Victims Fund and later spent. CBO expects that any additional revenues and direct spending would not be significant. 

INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

H.R. 4437 would impose intergovernmental and private-sector 

mandates, as defined in UMRA, on employers and other entities 

that hire, recruit, or refer individuals for employment. CBO expects 

that the aggregate direct costs to comply with those mandates 

would exceed the annual threshold for both intergovernmental and 

private-sector mandates ($62 million for intergovernmental mandates in 2005 and $123 million for private-sector mandates in 2005, 

adjusted annually for inflation) in at least one of the first five years 

the bill is in effect. 

Verification When Hiring, Recruiting, or Referring Individuals 

The bill would require State and local governments, private-sector employers, and other entities that recruit or refer employees, to 

submit names, Social Security numbers, and other identifying information of the individuals they hire, recruit, or refer to the employee verification system administered by DHS. Verification information would have to be submitted by the end of three working 

days after the date of hire or before recruiting or referring a potential employee. Such employers and entities also would be required 

to maintain a record of the verification for a specific amount of 

time in a form that would be available for Government inspection. 

The bill would require that the mandatory inquiry about employment eligibility and recordkeeping for new employees begin two 

years after the date of enactment of this bill. 

Verification of Previously Hired Employees 

All Government employers, certain private employers that are 

part of the critical infrastructure of the United States, and entities 

that employ persons in Government buildings, would be required 

within three years after the date of enactment to verify the identity 

and employment eligibility of all individuals employed by that entity who have not been previously subject to such an inquiry. Other 

private-sector employers would be required within six years after 

enactment to verify the identity and employment eligibility of all 

individuals employed by the entity who have not been previously 

subject to such an inquiry. A record of the verification for those 

previously hired employees also would have to be maintained by 

the employers for a specific amount of time in a form that would 

be available for Government inspection. 

Current law requires employers to attest that they have verified 

that the individual they are hiring, recruiting, or referring for employment in the United States is not an unauthorized alien by exVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00060 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
57 

amining certain documents. Some employers voluntarily use the 

employment verification system to confirm the name and Social Security number of individuals. Requiring all employers and other entities to do such inquiries would impose new intergovernmental 

and private-sector mandates on employers. The direct cost of the 

mandates would be the incremental cost to prepare and verify the 

employment eligibility of an individual through a toll-free telephone number or Web-based system and to maintain records. 

Based on information from State and local employers and representatives from personnel offices, the requirement to verify previously hired employees would be costly. Some employers with 

modern personnel systems would need to purchase software patches to enable their computer systems to compile and transmit the 

data. Smaller employers would need to manually submit the data 

through a toll-free phone number or Web-based system. Because of 

the large number of entities that would be required to prepare and 

submit information on previously hired individuals, however, CBO 

expects that the aggregate direct costs to comply with those mandates would exceed the annual threshold for both intergovernmental and private-sector mandates in at least one of the first five 

years the bill is in effect. 

This bill would create a new program to reimburse the costs incurred by some county sheriffs’ offices to detain and transport 

aliens who are not lawfully present in the United States. Those 

governments would benefit from up to $100 million annually for 

this program and any costs would be incurred voluntarily as conditions of receiving Federal assistance. 

PREVIOUS CBO ESTIMATE

On December 6, 2005, CBO transmitted a cost estimate for H.R. 

4312, the ‘‘Border Security and Terrorism Prevention Act of 2005,’’ 

as ordered reported by the House Committee on Homeland Security 

on November 17, 2005. We estimated that implementing that bill 

would cost $870 million over the 2006–2010 period, assuming appropriation of the necessary amounts. Several of the provisions in 

H.R. 4437 are identical to provisions in H.R. 4312, and CBO’s estimates for those provisions are unchanged. 

ESTIMATE PREPARED BY: 

Federal Costs: 

DHS and Federal Prisons—Mark Grabowicz (226–2860) 

Social Security Administration—Kathy Ruffing (226–2820) 

Impact on State, Local, and Tribal Governments: Melissa Merrell 

(225–3220) 

Impact on the Private Sector: Paige Piper/Bach (226–2960) 

ESTIMATE APPROVED BY: 

Peter H. Fontaine 

Deputy Assistant Director for Budget Analysis 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of Rule XIII 

of the Rules of the House of Representatives, H.R. 4437 will 

58 

strengthen enforcement of the immigration laws and enhance border security. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in art. 1, § 8, cl. 4 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following section-by-section analysis contains a description of 

principal provisions contained in H.R. 4437 as reported within the 

jurisdiction of the Committee on the Judiciary. H.R. 4437 incorporates the border security provisions contained in H.R. 4312, 

which was reported from the Committee on Homeland Security on 

December 6, 2005. For a discussion of these border security provisions, please see H.R. Rept. 109–329, Part I. 

Section 3. Sense of Congress on setting a manageable level of immigration. 

Section 3 provides a sense of Congress that the Nation’s immigration policy shall be designed to enhance the economic, social and 

cultural well-being of the United States. 

TITLE I—SECURING UNITED STATES BORDERS

Section 104. Biometric data enhancements. 

This section requires that by October 1, 2006, the Secretary of 

the Department of Homeland Security (DHS) enhance the 

connectivity between the Automated Biometric Identification System (ABIS) and Integrated Automated Fingerprint Identification 

System (IAFIS) biometric databases and collect ten fingerprints 

from individuals through the United States Visitor and Immigrant 

Status Indicator Technology (US-VISIT) program during their initial enrollment. 

TITLE II—COMBATTING ALIEN SMUGGLING AND

ILLEGAL ENTRY AND PRESENCE

Section 201. Definition of aggravated felony. 

This section amends the definition of aggravated felony contained 

in the Immigration and Nationality Act (INA) to include all smuggling offenses, illegal entry, and reentry crimes with a sentence of 

a year or more. It also makes the aggravated felony definition consistent with Federal criminal law by expanding it to include solicitation and assistance in specified offenses. 

This section is necessary to combat alien smuggling and criminal 

aliens illegally reentering the United States. The INA broadly defines the term ‘‘aggravated felony’’ in over 20 sub-paragraphs. If an 

alien has been convicted of such an offense, the alien will be ineligible for most forms of relief and for release from detention. Illegal 

reentry after such an offense will also subject the alien to serious 

criminal penalties. The aggravated felony definition does not effectively deter, however, many dangerous aliens from repeatedly reentering the United States illegally. Specifically, the definition only 

includes illegal entry and illegal reentry violations of the INA in 

59 

12See The Deadly Consequences of Illegal Alien Smuggling: Hearing of the Subcomm. on Immigration, Border Security and Claims of the House Comm. on the Judiciary, 108th Cong. 

(2003). 13See U.S. v. Corona-Sanchez , 291 F. 3d 1208 (9th Cir. 2002)(en banc). 

circumstances in which the alien was previously deported for having committed another aggravated felony. The current definition is 

unduly restrictive in several respects. First, this definition does not 

reach aliens who previously committed various other felonies, even 

though those felonies may have been serious crimes. Second, it 

does not reach aggravated felon aliens who were previously deported, but who were not deported on the basis of their aggravated 

felony convictions. Section 201 would address this problem by including within the definition of aggravated felony a felony illegal 

entry or reentry offense under section 275(a) or section 276 of the 

INA, without regard to whether the alien had been previously deported subsequent to conviction of an aggravated felony. Given 

their prior felony immigration convictions, such criminal aliens are 

well aware of the immigration laws. Their decision to reenter the 

United States should warrant the same immigration restrictions 

and a sentence at least equal to those who commit non-immigration 

felony offenses. 

In addition to these changes, section 201 will also make all 

smuggling convictions aggravated felonies with the exception of 

smuggling related to an alien’s immediate family. Recent experience shows that alien smuggling is flourishing, is increasingly violent, and highly profitable.12 Alien smuggling operations also 

present terrorist and criminal organizations with opportunities to 

smuggle their members into the United States practically at will. 

This section will impose the most serious sanctions under the immigration laws upon aliens who engage in alien smuggling. 

Finally, this section makes clear that the definition of aggravated 

felony includes ‘‘soliciting, aiding, abetting, counseling, commanding, inducing, procuring’’ or a conspiracy to commit any of the 

offenses listed in section 101(a)(43) of the INA, by incorporating the 

aiding and abetting language from Federal law. This change is 

needed to reverse a Ninth Circuit precedent that has had the effect 

of requiring Federal prosecutors in criminal cases seeking sentencing enhancements to prove that prior convictions were not 

based on aiding and abetting.13 This is often impossible to prove, 

because in Federal court, and in almost every State jurisdiction, a 

defendant can be convicted of aiding and abetting a substantive offense, even if aiding and abetting is not specifically charged in the 

indictment. 

Section 202. Alien smuggling and related offenses. 

This section amends the alien smuggling provisions of the INA 

to include offenses in circumstances in which the offender acts in 

reckless disregard of the fact that the smuggled person is an alien 

not allowed to enter the United States, places mandatory minimum 

sentences on smuggling convictions, and facilitates DHS efforts to 

seize smugglers’ property. 

In recent years, more and more illegal aliens are utilizing the 

services of alien smugglers and the cost of their services has increased dramatically. Alien smuggling not only facilitates illegal 

immigration, but subjects smuggled aliens to inhumane treatment. 

60 

Migrants are frequently abused or exploited, both during their journey and upon reaching the United States. There are many recent 

examples—aliens abandoned by their smugglers in the desert, 

without food or water, and aliens who have died or suffered serious 

injuries when locked by smugglers into trucks and cargo containers. Consequently, aliens smuggled into the United States are 

at significant risk of physical injury, abuse, and death. In addition, 

smuggled aliens must often pay back their debts through long periods of indentured servitude in sweatshop conditions in places like 

New York City’s Chinatown, and smugglers often coerce indebted 

aliens into drug trafficking, prostitution, and other illegal activities. Aliens who fail to cooperate with smugglers suffer severe penalties. The Committee believes that it is vital to establish clear 

penalties to deter and prevent the cruel and inhumane trafficking 

of human beings. Smuggling also poses a national security risk, as 

terrorists and criminals can utilize the same smugglers that economic migrants use. 

However, under current law, individuals convicted of alien smuggling crimes often receive lenient sentences, which have contributed to the upsurge in alien smuggling. Organized crime syndicates 

realize that the risk of punishment for smuggling aliens is far less 

than the risk for smuggling drugs or committing other serious 

crimes. In addition, lenient sentences and the lack of serious penalties in current criminal law toward alien smuggling may act to 

dissuade U.S. Attorneys from bringing cases. 

Under existing law, the offenses and penalties for unlawfully 

bringing aliens into the United States are set forth in two separate 

provisions, sections 274(a)(1) and 274(a)(2) of the INA. For historical reasons, those provisions were implemented and developed separately. As a result, the two provisions contain inconsistent mens 

rea elements, and provide disparate sentences for identical or substantially similar conduct. Accordingly, the successful prosecution 

of virtually identical conduct can lead to different results under 

current law, depending upon whether a violation of section 

274(a)(1)(A)(i) or (a)(2) is charged. Section 202 creates a uniform 

mens rea standard for alien smuggling and related offenses, and 

sets uniform sentences for violations of those offenses. 

Unlike current law, the penalties for those charged will be based 

on the factual circumstances of the offense and the danger that the 

smuggling posed to the alien and to the community rather than on 

the code section charged. As a result, offenses that were committed 

for commercial profit will be punished more severely than offenses 

that are not. Offenses that are committed to further other criminal 

acts are subject to even more serious mandatory sentences, as are 

offenses that result in injury or death. Consistent with existing 

law, offenses in which death results will be eligible for the death 

penalty. This section will increase the criminal penalties for certain 

alien smuggling offenses and establish mandatory minimum sentences for serious and repeat offenders. In addition, it increases 

penalties where the smuggling posed a risk to individuals or the 

Nation. 

This section also expands the scope of the alien smuggling statute to reach conduct that is not covered by existing law. The section reaches conduct relating to facilitating the smuggling of aliens 

to the United States by persons who willfully participate in alien 

61 

smuggling ventures, but where the Government cannot demonstrate beyond a reasonable doubt that the smugglers knew the 

aliens were en route to the United States. Rather than forming 

centralized, tightly controlled hierarchies, alien smugglers often 

favor loose, short- or long-term associations. These global networks 

often match smugglers who specialize in illegally transporting particular nationals or have special knowledge of specific routes. 

Under existing law, however, smugglers who play an integral role 

in facilitating the illegal movement of aliens to the United States 

cannot be prosecuted unless the Government can prove that the 

smuggler knew or recklessly disregarded the fact that the aliens intended to travel to the United States. This section eliminates this 

loophole. 

This section will also help to reduce the profits derived from 

alien smuggling. Under existing law, civil forfeiture is limited to 

any conveyance used in smuggling. Section 202 will permit civil 

forfeiture of any property, real or personal, used to commit or facilitate the commission of a violation of amended subsection (a)(1), the 

gross proceeds of such violation, and property traceable to such 

property or proceeds. This amendment is necessary to deprive 

smugglers of the property they use to coordinate and undertake 

their smuggling operations and to deny them the financial gains 

they have obtained through smuggling. 

Section 203. Improper entry by, or presence of, aliens. 

This section makes illegal presence in the United States a Federal crime, and expands the penalties for aliens who illegally enter 

the U.S., are present illegally, or are present illegally and have 

been convicted of certain crimes. It also expands the penalties for 

marriage and immigration-related entrepreneurship fraud. 

Section 203 is intended to bring section 275 of the INA, which 

criminalizes illegal entry into the United States, into harmony with 

section 276, which prohibits illegal entry after removal. Section 276 

makes it a crime to be ‘‘found in’’ the United States after removal. 

Section 203 of the bill amends section 275 to state that it is a crime 

for an alien to be ‘‘present in the United States in violation of the 

immigration laws or regulations prescribed thereunder.’’ This section establishes consistency between section 275 and section 276. 

Section 203 also removes incentives for aliens, having entered legally, to remain in the United States in violation of the terms of 

their visa or entry. Currently, ‘‘visa overstay’’ is not a criminal offense, and, as a practical matter, there are often not negative consequences associated with visa overstay. This is likely one of the 

reasons that the overstay problem is significant. According to the 

2000 Statistical Yearbook of the Immigration and Naturalization 

Service, ‘‘About 2.1 million, or 41 percent, of the total undocumented population in 1996 [were] non-immigrant overstays. That 

is, they entered legally on a temporary basis and failed to depart.’’ 

Because overstaying a visa is not currently a criminal offense, in 

many cases an alien is no worse off for having remained in the 

United States past the expiration of an authorized stay than they 

would have been had they departed on time. On the contrary, in 

some cases aliens have sought relief based on factors that develop 

during the time they were out of status. In making overstaying a 

visa a Federal crime, section 203 will encourage aliens to depart at 

62 

14Office of the Inspector General, U.S. Department of Justice, Special Report—the Rafael 

Resendez-Ramirez Case: A Review of the INS’s Actions and Operation of Its IDENT Automated 

Fingerprint System (2000). 

the end of their authorized stay. This penalty will increase respect 

for the immigration system by deterring aliens who remain in the 

United States out of the mistaken belief that their visa overstay is 

merely a technical violation. It will also ensure that illegal aliens 

do not labor under the impression that simply eluding authorities 

for long enough will provide relief from deportation based on acquired equities. 

Section 203 also contains sentence enhancements for illegal alien 

criminal offenders who remain in the United States after conviction. This will protect the American people by encouraging serious 

criminal illegal aliens to leave the United States after imprisonment. Such self-deportation is more effective, and cost-effective, 

than removal by the Government. 

Finally, this section increases the penalties for marriage and immigration-related entrepreneurship fraud. Enhanced penalties are 

necessary to deter an increasing level of immigration fraud, particularly by criminal organizations that utilize, promote, or derive 

financial benefit from immigration fraud. Increasing the maximum 

sentences under these subsections will serve to deter and punish 

organizations and individuals who engage in these crimes. 

Section 204. Reentry of removed aliens. 

This section, based on Representative Darrell Issa’s ‘‘Criminal 

Alien Accountability Act’’ (H.R. 3150), sets mandatory minimum 

sentences for aliens convicted of reentry after removal. Section 276 

of the INA criminalizes attempted or successful entry into the 

United States by illegal aliens who have been previously excluded, 

deported, removed, or denied admission. Unfortunately, this provision has proven ineffective at deterring the reentry of aliens after 

removal from the United States. As a result of this frequent abuse, 

United States Attorneys Offices have set thresholds for the number 

of reentries aliens must commit before they will be prosecuted. 

This problem is particularly troublesome given the examples of 

those illegal aliens who go on to commit serious crimes. 

For example, Rafael Resendez-Ramirez, the so-called ‘‘Railway 

Killer’’ who killed at least eight people over a 3-year period in the 

late 1990s, had an extensive criminal record in the United States 

beginning in 1976, including convictions for burglary and aggravated assault. He also had an extensive immigration record, having 

been arrested for illegal entry on seven occasions in 1998 alone. As 

the Department of Justice’s Inspector General (IG) found, however: 

‘‘[B]ecause Resendez had not reached the threshold number of prior 

apprehensions for prosecution established in each of the stations 

where he was apprehended, he was not detained for prosecution,’’ 14

but instead was returned to Mexico. The IG found that ‘‘after each 

return to Mexico, he reentered the United States illegally and continued his criminal activities,’’ including the December 1998 murder of Dr. Claudia Benton in Houston. Section 204 will shut the revolving door that allows criminal aliens to reenter the United 

States to prey on residents of the United States. By setting mandatory minimum sentences for these offenses, we will both deter alien 

63 

criminals from reentering illegally and encourage their effective 

prosecution when they do. 

This section also resolves an issue that has arisen in numerous 

prosecutions under section 276 of the INA. At present, to prove a 

violation of section 276, the Government is required to show that 

the Secretary of Homeland Security did not consent to the alien applying for readmission to the United States or that the alien is not 

required to obtain such consent. Thus, in order to convict an alien 

of reentering the United States after removal, the Government 

must prove a negative, i.e., that the Attorney has not ‘‘expressly 

consented to such alien’s reapplying for admission.’’ Each case 

therefore requires the Government to perform an intensive search 

of its records, and to then issue a certificate of nonexistence to certify that the search was done and no application from the specific 

alien-defendant was found. Despite the fact that aliens rarely apply 

for the Secretary’s consent, DHS must nevertheless make an exhaustive search in each case. Section 204 converts permission to reenter into an affirmative defense to an illegal reentry charge. Because few aliens apply for the consent of the Secretary of DHS, and 

the defendant-alien is in the best position to know whether he applied for such permission, this change will properly apportion the 

burden with respect to consent to reenter and eliminate the need 

for the Government to prove that the Secretary did not consent in 

its case-in-chief. 

Section 205. Mandatory sentencing ranges for persons aiding or assisting certain reentering aliens. 

Also based on the ‘‘Criminal Alien Accountability Act,’’ this section seeks to deter the smuggling of removed aliens by imposing on 

smugglers the same sentences that the aliens they have smuggled 

would receive. 

Section 206. Prohibiting carrying or using a firearm during and in 

relation to an alien smuggling crime. 

18 U.S.C. § 924(c) criminalizes the carrying or use of firearms in 

the commission of violent or drug trafficking crimes. Presently, current law does not address alien smugglers who use firearms to further their crimes. Increasing numbers of alien smugglers are utilizing firearms to facilitate their smuggling, and a greater number 

are expected to arm themselves as their livelihood is disrupted by 

U.S. agents patrolling America’s borders. The willingness of smugglers to use and carry firearms endangers the lives of Border Patrol 

agents, the aliens who are being smuggled, and innocent bystanders. The use of weapons also aids smugglers and aliens in escaping 

apprehension, as it allows them to forcibly resist border patrol officers. Given these facts, stronger punishment of smugglers who use 

weapons in the commission of their crimes is warranted. Section 

206 will provide for such punishment by subjecting alien smugglers 

to the same penalties faced by criminals who carry firearms when 

they traffic in narcotics and commit Federal crimes of violence. 

Section 207. Clarifying changes. 

This section clarifies that the provision barring entry to aliens 

who have made false claims to U.S. citizenship also applies to 

aliens who have made false claims to U.S. nationality. It also proVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00067 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
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vides that DHS shall have access to any information kept by any 

Federal agency with regard to any person seeking a benefit or 

privilege under the immigration law. 

Section 208. Voluntary departure reform. 

‘‘Voluntary departure’’ is a benefit in removal proceedings that 

allows deportable aliens to agree to leave the United States within 

a specified time period of their own volition rather than facing a 

formal order of removal, while avoiding the adverse legal consequences of a final order of removal. Ideally, the Government 

should also benefit from this practice, as it is spared the expense 

of initiating removal proceedings, extensively litigating the aliens’ 

cases, and, ultimately, removing the aliens. The Government may 

not realize such benefits in practice, however, because few aliens 

granted voluntary departure actually depart from the country expeditiously. In all too many cases, a grant of voluntary departure is 

merely a prelude to years of further litigation in which the alien 

continues to benefit from delay of removal. Under current law, an 

alien who receives voluntary departure may appeal his immigration case first to the Board of Immigration Appeals, and then to the 

Court of Appeals. Many circuit courts will toll the voluntary departure period pending review. At the end of this process, perhaps 

years after the original voluntary departure grant, and after denial 

of every appeal, the alien can then leave the United States in accordance with the original voluntary departure grant. 

Section 208 changes this process to encourage aliens to depart 

under the terms of the voluntary departure order. The section 

amends the INA to offer clear advantages for aliens who agree to 

voluntary departure and then actually depart. It also forecloses future litigation in the alien’s case. Under this section, an alien may 

only be granted voluntary departure pursuant to an agreement in 

which the alien agrees to waive appeal. This will not preclude the 

alien opting to take an appeal in lieu of voluntary departure, however, such an action would void any voluntary departure agreement. Section 208 also contains penalties in the event that the 

alien fails to depart in accordance with the voluntary departure 

agreement. Failure to depart will subject the alien to a $3,000 fine, 

and the alien will be barred from certain forms of relief for as long 

as the alien remains in the country and for 10 years thereafter. An 

alien who violates a voluntary departure agreement by failing to 

depart may not reopen his removal proceedings, except to apply for 

withholding of removal or protection under the Convention Against 

Torture. Taken together, these provisions will ensure the effective 

use of the Government’s limited judicial, litigation, and removal resources. They will also provide the alien with incentives to depart 

the United States as agreed. In addition, the maximum period of 

voluntary departure before the end of proceedings is reduced from 

120 to 60 days, and aliens receiving such benefit must post bond 

or show that such a bond would create a hardship or is unnecessary. 

65 

15See U.S. Department of Justice Office of the Inspector General, Evaluation and Inspections 

Division, The Immigration and Naturalization Services Removal of Aliens Issued Final Orders 

(I–2003–004) at i, ii (2003). 

Section 209. Deterring aliens ordered removed from remaining in 

the United States unlawfully and from unlawfully returning to 

the United States after departing voluntarily. 

DHS estimates that some 480,000 absconders—aliens who are 

under final orders of removal but have evaded apprehension and 

removal by DHS—are currently present in the United States, and 

that approximately 40,000 new absconders are added to these 

ranks each year. In 2003, the Department of Justice Inspector General issued a report that found that the former INS had successfully carried out removal orders with respect to only 13 percent of 

non-detained aliens who were subject to final removal orders—and 

was able to remove only 3 percent of non-detained aliens who had 

unsuccessfully sought asylum.15 A major barrier to effective removal of alien absconders is the fact that there are currently few 

effective administrative sanctions available under the law against 

absconders who have been apprehended beyond the mere execution 

of the same removal order that they had been successfully evaded 

for months or years. Even if such absconding aliens are unsuccessful in obtaining the reopening of their previous final order, they 

may simply launch a new round of litigation before the Board of 

Immigration Appeals (BIA) and the courts. Section 209 provides 

more effective administrative tools to deter absconders from remaining in this country illegally and to prevent them from obtaining any further advantages after flouting their removal orders. 

This section improves the bars on reentry by aliens ordered removed by closing a loophole allowing aliens to avoid these penalties 

by unlawfully remaining in the United States. Under section 209, 

the bars on admissibility will apply once the alien is ordered removed—even if that alien has not yet departed. Similarly, the section bars aliens from future discretionary relief if they have absconded after receiving a final order of removal until they have left 

the United States and for 10 years thereafter. It also bars the 

granting of motions to reopen to aliens who have flouted their legal 

duty to depart from the United States under the final order of removal. Taken together, these changes will diminish the likelihood 

that aliens will remain in the United States unlawfully with the 

hope of becoming eligible for some other form of relief in the future. 

By foreclosing future relief for aliens who fail to depart, the 

changes in section 209 will increase the incentive for aliens to seek 

and to comply with removal orders. 

Section 210. Establishment of a special task force for coordinating 

and distributing information on fraudulent immigration documents. 

This section requires the Secretary of Homeland Security to establish a task force to collect information on the production, sale, 

and distribution of fraudulent documents to be used to enter or remain in the U.S. unlawfully, to maintain that information in a 

database, to convert the information into reports to provide guidance to Government officials, and to develop a system for distributing these reports to appropriate law enforcement agencies. 

66 

TITLE IV—DETENTION AND REMOVAL

Section 401. Mandatory detention for aliens apprehended at or between ports of entry. 

This section requires the Department of Homeland Security by 

October 1, 2006, to detain all aliens apprehended at ports of entry 

or along the international land and maritime borders of the United 

States until they are removed from the United States or a final decision granting their admission has been determined. The only exceptions to mandatory detention are if the alien departs immediately, such as Mexican nationals who are voluntarily returned 

across the border, and those paroled due to urgent humanitarian 

reasons or significant public benefit. 

This will end the present ‘‘revolving door’’ whereby illegal aliens 

from countries other than Mexico are caught trying to illegally 

enter the U.S. and promptly released (because of a lack of detention space) with the hope that they will appear for their immigration court hearing months hence. As noted earlier, the Department 

of Justice’s Office of the Inspector General found that the INS was 

only able to remove 13 percent of nondetained aliens with final orders of removal. In 2004, 120,000 of the 160,000 ‘‘other-than-Mexicans’’ apprehended along the border were released. 

Section 402. Expansion and effective management of detention facilities. 

This section requires the Secretary of Homeland Security to fully 

utilize all bed space owned and operated by the Department and 

to utilize all other possible options to cost-effectively increase detention capacity, including temporary facilities, contracting with 

State and local jails, and establishing secure alternatives to detention. 

Section 403. Enhancing transportation capacity for unlawful aliens. 

This section authorizes the Secretary of DHS to enter into contracts with private entities to provide secure domestic transportation of aliens apprehended at or between ports of entry from the 

custody of the Border Patrol to a detention facility. 

Section 404. Denial of admission to nationals of country denying or 

delaying accepting alien. 

Current law requires the Secretary of State to discontinue granting visas to nationals of countries that deny or unreasonably delay 

accepting the return of their nationals subject to deportation by the 

U.S. Because this punishment is so draconian—barring all nationals of a country from receiving visas—it is almost never used, despite the fact that a number of countries continue to refuse to accept the return of their nationals. This section would add a more 

measured punishment that is more likely to be used—authorizing 

the Secretary of Homeland Security to deny admission to any national of a country that declines to accept the prompt repatriation 

of its nationals. 

Section 405. Report on financial burden of repatriation. 

This section requires the Secretary of DHS to submit an annual 

report to the Secretary of State and the Committee on Homeland 

67 

16See INA section 235(b). 17See INA section 235(b)(1)(A)(iii). 

Security that details the costs to the Department of Homeland Security for repatriating aliens and provides recommendations to 

more cost effectively repatriate such aliens. 

Section 407. Expedited removal 

By the mid-1990’s, tens of thousands of aliens were arriving at 

U.S. airports each year without valid documents and making 

meritless asylum claims, knowing that they would be released into 

the community pending asylum hearings because of a lack of detention space. Few were ever heard from again. In response, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 

(IIRIRA) created the mechanism of ‘‘expedited removal.’’ 16 Under 

expedited removal, a DHS officer at a port-of-entry can immediately return an alien lacking proper documents to his or her 

country of origin unless the alien asks for asylum and can establish 

a ‘‘credible fear’’ of persecution. By fiscal year 2003, the INS was 

making over 43,000 expedited removals per year and our airports 

were no longer being deluged. 

IIRIRA provided the Administration with the authority to utilize 

expedited removal in the case of any alien who had entered the 

U.S. illegally and had not been present here for 2 years.17 Until recently, the INS and DHS never made use of this power. Recently, 

the administration has begun using expedited removal along the 

southern border because of the large numbers of non-Mexican 

aliens who have been caught by the Border Patrol and then released into the United States because of a lack of detention space. 

Under the discretionary authority provided by IIRIRA, the administration has been utilizing expedited removal against non-Mexican 

aliens who are apprehended within 100 miles of the border and 14 

days of unauthorized entry. Section 407 would mandate the use of 

expedited removal in these instances. 

Section 408. GAO Study on deaths in custody. 

This section requires the Government Accountability Office 

(GAO) to submit within 6 months of enactment a report to Congress on the deaths in custody of detainees held on immigration 

violations by the Department of Homeland Security. 

TITLE VI—TERRORIST AND CRIMINAL ALIENS

Section 601. Removal of terrorist aliens. 

Withholding of removal is a form of protection that, while similar 

to asylum, differs in two important respects: (1) it is nondiscretionary; and (2) to receive this benefit, the alien must meet a 

higher standard of proof than asylum. Although aliens who pose a 

danger to the national security generally are barred from withholding of removal, aliens deportable on terrorist grounds are not 

expressly barred from such relief. This section bars aliens deportable on terrorist grounds from receiving withholding of removal. 

As the 9/11 Commission’s staff report on terrorist travel makes 

clear, terrorist aliens have abused our humanitarian benefits to reVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00071 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
68 

18See 9-11 and Terrorist Travel: Staff Report of the National Commission on Terrorist Attacks 

Upon the United States at pgs. 47, 99 (2004). 19 533 U.S. 678 (2001). 20 543 U.S. 371 (2005). 21Strengthening Immigration Enforcement, Hearing Before the Subcomm. on Immigration, 

Border Security and Citizenship and the Subcomm. on Terrorism, Technology and Homeland Security of the Senate Comm. on the Judiciary, 109th Cong. (2005). 

main in the United States.18 First World Trade Center bomber 

Ramzi Yousef, the Blind Sheikh, and Mir Kansi, who killed two in 

front of headquarters of the CIA, all made claims to asylum to remain in the United States. Congress has barred terrorist aliens 

from receiving asylum, but the bars to terrorist aliens receiving 

withholding of removal, are less clear. Under the INA, aliens are 

currently only barred from withholding if there are reasonable 

grounds to believe that they are a danger to the security of the 

United States. While the INA states that aliens, who are described 

in the provision that renders aliens deportable who have engaged 

in any terrorist activity, ‘‘shall be considered to be . . . alien[s] 

with respect to whom there are reasonable grounds for regarding 

as a danger to the security of the United States,’’ aliens with terrorist ties have made claims that they are not a danger to the security of the U.S., and thus eligible for withholding. 

Section 601 bars all aliens described in the terrorist grounds of 

inadmissibility from eligibility for withholding of removal, with two 

exceptions. The exceptions give DHS the sole discretion to determine that representatives of terrorist groups, and the spouses and 

children of aliens who would themselves be barred on terrorist 

grounds, are not a danger to the national security and are not 

barred from such relief. The terrorist representative exception provision is already contained in the asylum provision, and the spouse 

or child exception was added at the request of DHS. The amendments to section 601 will ensure that the same standards apply in 

assessing whether aliens are eligible for the two primary forms of 

humanitarian relief, asylum and withholding of removal. 

Section 602. Detention of dangerous aliens. 

In the 2001 decision of Zadvydas v. Davis,19 the Supreme Court 

ruled that under current law, aliens who had been admitted to the 

U.S. and then ordered removed could not be detained for more than 

6 months if for some reason they could not be removed. Then, in 

Clark v. Martinez,20 the Court dealt with two Cubans who came to 

the U.S. during the Mariel boatlift and later committed crimes including assault with a deadly weapon, attempted sexual assault, 

and armed robbery. The Court expanded its decision in Zadvydas 

to apply to such non-admitted aliens. Based on these two decisions, 

the Justice Department and the Department of Homeland Security 

have had no choice but to release back onto the streets many hundreds of criminal aliens. 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.’’ 21 Cohn referenced 

the release of aliens including murderers, a schizophrenic sex offender and pedophiles. Many of these aliens were Mariel Cubans 

released from Cuban jails or aliens who have received relief from 

removal pursuant to the Convention Against Torture (CAT), which 

69 

22See Immigration Relief Under the Convention Against Torture for Serious Criminals and 

Human Rights Violators: Hearing Before the Subcomm. on Immigration, Border Security and 

Claims of the House Comm. on the Judiciary, 108th Cong. (2003). 

prohibits the return of an alien to a country where there are substantial grounds for believing that he or she would be in danger of 

being tortured. Almost 900 criminal aliens ordered removed have 

received CAT relief and have subsequently been released into our 

communities pursuant to these decisions. This includes at least one 

alien who was implicated in a mob-related quintuple homicide in 

Uzbekistan.22 Also, one alien removable on terrorism grounds has 

been released after receiving CAT protection. One of the aliens released has subsequently been arrested for shooting a New York 

State trooper in the head. 

Section 602 allows DHS to detain specified dangerous aliens 

under orders of removal who cannot be removed. The section would 

authorize DHS to detain aliens who are stopped at the border beyond 6 months. The section would also authorize DHS to detain 

aliens who effected an entry beyond 6 months, but only if: (1) the 

alien will be removed in the reasonably foreseeable future; (2) the 

alien would have been removed but for the alien’s refusal to make 

all reasonable efforts to comply and cooperate with the Secretary 

of DHS’ efforts to remove him; (3) the alien has a highly contagious 

disease; (4) release would have serious adverse foreign policy consequences; (5) release would threaten national security; or (6) release would threaten the safety of the community and the alien either is an aggravated felon or is mentally ill and has committed 

a crime of violence. Such aliens may be detained for periods of 6 

months at a time, and the period of detention may be renewed. 

This section also provides for judicial review of detention decisions 

in the United States District Court for the District of Columbia. 

Section 603. Increase in criminal penalties. 

This section increases penalties and sets mandatory minimum 

sentences for aliens who fail to depart when ordered removed or obstruct their removal, or who fail to comply with the terms of release pending removal. 

Section 604. Precluding admissibility of aggravated felons and 

other criminals. 

In the Immigration and Nationality Act, the most serious criminal offenses are deemed aggravated felonies. A conviction for an aggravated felony can have significant consequences for an alien. 

Such an offense requires the removal of an admitted alien and bars 

him from most forms of relief, and also subjects an alien to an increased sentence for certain crimes. However, under current law a 

conviction for an aggravated felony is not, per se, a ground of inadmissibility. For this reason, an aggravated felony conviction will 

not render an alien inadmissible under section 212(a)(2) of the INA 

unless the conviction also falls within one of the existing criminal 

grounds of inadmissibility, such as a crime involving moral turpitude, or a controlled substance or money laundering offense. Section 604 bars aggravated felons from admission and from receiving 

discretionary waivers of inadmissibility under section 212(h) of the 

INA. This corrects an anomaly under current law by which aliens 

with aggravated felony convictions who are present illegally may 

70 

receive waivers under that provision, while lawful permanent resident aliens may not. 

Section 604 also applies the domestic violence ground of deportability to inadmissibility. This will prevent aliens who have been 

convicted of crimes of domestic violence, stalking, child abuse and 

child neglect from entering and remaining in the United States. Finally, section 604 amends the inadmissibility grounds to bar the 

admission of aliens who have committed or been convicted of 

crimes relating to Social Security fraud or the unlawful procurement of citizenship. 

Section 605. Precluding refugee or asylee adjustment of status for 

aggravated felonies. 

In various statutory enactments since 1988, Congress has attached a series of stringent restrictions upon the eligibility of aliens 

to obtain almost all forms of discretionary immigration relief after 

they have been convicted of an aggravated felony. In particular, 

under the asylum provisions, an alien convicted of an aggravated 

felony is conclusively barred from being granted asylum, and a 

grant of asylum may be terminated if it is determined that the 

alien has become subject to one of the mandatory bars to asylum, 

including an asylee being convicted of an aggravated felony. However, the provision governing asylee and refugee adjustment to permanent resident status does not expressly bar an applicant from 

obtaining adjustment where the alien has been convicted of an aggravated felony after obtaining refugee or asylee status. Not only 

is this inconsistent with statutory bars on almost all discretionary 

immigration relief for aggravated felons, it is also inconsistent with 

the treatment that the asylee or refugee would be accorded after 

adjustment. Specifically, an alien who has been granted refugee or 

asylee adjustment is barred from obtaining cancellation of removal, 

a waiver under section 212(h) of the INA, or section 212(c) relief 

from removal if the alien is convicted of an aggravated felony after 

attaining such status. Section 605 corrects this discrepancy by barring asylees and refugees convicted of aggravated felonies from adjustment. 

Section 606. Removing drunk drivers. 

Recent news reports have underscored the tragic cost inflicted by 

aliens who have taken lives while driving under the influence of alcohol. Two cases from North Carolina underscore this problem. In 

each, the alien driver has been charged with drinking and killing 

another driver. Authorities have alleged that a Gaston County 

teacher was killed in July by an illegal Mexican national with five 

previous charges of Driving While Intoxicated (DWI). That alien 

has been charged with DWI and second degree murder. The police 

have also reported that a University of North Carolina-Charlotte 

student was killed in November by an illegal Mexican national who 

reportedly had two prior impaired-driving arrests and had drunk 

six beers before the accident. That alien, who had previously been 

sent back to Mexico 17 times, was also charged with second-degree 

murder. Despite the risks posed by drunk drivers, this offense is 

not currently a ground of removal. This section renders aliens convicted of three or more drunk driving offenses deportable. 

71 

23 Immigration and the Alien Gang Epidemic: Problems and Solutions: Hearing Before the 

Subcomm. on Immigration, Border Security and Claims of the House Comm. on the Judiciary, 

109th Cong. (2005). 24 Id. (Of 5,000 gang members in a database that ICE compiled for Operation Community 

Shield, 291 El Salvadoran nationals, 43 Hondurans, and one Nicaraguan had been granted TPS, 

6.7 percent of the total). 

Section 607. Designated county law enforcement assistance program. 

Section 607, based on Representative Culberson’s ‘‘Border Law 

Enforcement Act of 2005,’’ (H.R. 4360) authorizes local sheriffs in 

the 29 counties along the southern border to transfer illegal aliens 

they have arrested to Federal custody. It also specifically reimburses those sheriffs for costs associated with detaining illegal 

aliens they arrest until they are able to hand them over to Federal 

authorities. The section deems aliens in sheriffs’ custody to be in 

Federal custody once determined to be unlawfully present. 

Section 608. Rendering inadmissible and deportable aliens participating in criminal street gangs; detention; ineligibility from 

protection from removal and asylum. 

Crime by alien members of criminal street gangs is drastically 

increasing. Former ICE Assistant Secretary Mike Garcia has stated: ‘‘In the last decade, the United States has experienced a dramatic increase in the number and size of transnational street 

gangs. . . . These gangs have a significant, often a majority, foreign-born membership. . . .’’ 23 He also stated, ‘‘[E]ntire neighborhoods and sometimes whole communities are held hostage by and 

subjected to the violence of street gangs.’’ Currently, however, 

aliens who are members of criminal street gangs are not deportable 

or inadmissible, and can receive asylum and temporary protected 

status (TPS), until they are convicted of a specific criminal act. 

Many of the members in the United States of these gangs are 

present in the U.S. under TPS.24 One of the most violent and fastest-growing gangs, Mara Salvatrucha-13 (MS-13), was formed by 

Salvadorans who entered the U.S. during the civil war in El Salvador in the 1980’s. There are an estimated 8,000 to 10,000 members in 31 States. The gang is estimated to have as many as 50,000 

members internationally. There have been 18 MS-13-related 

killings in North Carolina, 11 in Northern Virginia, and at least 

eight in Los Angeles in the past 2 years. 

Section 608, based on Representative Forbes’s ‘‘Alien Gang Removal Act of 2005,’’ (H.R. 2933) renders alien gang members deportable and inadmissible, mandates their detention, and bars 

them from receiving asylum or TPS. This section adopts procedures 

similar to those used by the State Department to designate foreign 

terrorist organizations to enable the Attorney General to designate 

criminal street gangs for purposes of the immigration laws. ‘‘Criminal street gangs’’ are defined as ‘‘a formal or informal group or association of three or more individuals, who commit two or more 

gang crimes (one of which is a crime of violence . . .) in two or 

more separate criminal episodes, in relation to the group or association.’’ ‘‘Gang crime’’ is defined in that subsection as ‘‘conduct constituting any Federal or State crime, punishable by imprisonment 

for 1 year or more’’ in various categories, including crimes of vioVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00075 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
72 

lence, obstruction of justice, witness tampering, burglary, and drug 

trafficking. 

Section 609. Naturalization reform. 

Alien terrorists are deportable and are also barred from admission and most other forms of immigration relief. However, there 

are no express bars for terrorists from being naturalized, the most 

significant benefit that the United States can bestow on an alien. 

Section 609 would close this loophole and bar alien terrorists from 

naturalization. 

Section 609 would also correct other discrepancies in the naturalization provisions. When INS was given authority to grant naturalization, INS was precluded from granting that benefit as long 

the applicant was in removal proceedings. That preclusion did not, 

however, apply to district courts, which retained part of their historic authority over naturalization. Section 609 corrects this incongruity by barring district court consideration of naturalization applications while the applicant is in removal proceedings. Section 

609 also holds in abeyance petitions to grant status for relatives 

filed by individuals who are, themselves, facing denaturalization or 

removal. Needless to say, if these individuals are in jeopardy of losing the status that makes their relatives eligible for benefits, it 

makes no sense to grant those benefits until the petitioner’s status 

is clarified. 

Currently, aliens can go to district court if their naturalization 

applications have been pending with DHS for more than 120 days. 

Section 209 gives DHS 180 days to adjudicate these applications, 

and limits District Court relief to remand for adjudication by DHS, 

making the provision more in line with traditional mandamus actions. Finally, the section limits court review of DHS’s findings 

with respect to whether a naturalization applicant has good moral 

character, whether the alien understands and is attached to the 

principles of the Constitution, and is well disposed to the good 

order and happiness of the United States. These findings are similar to other discretionary determinations that are precluded from 

judicial review. 

Section 610. Expedited removal for aliens inadmissible on criminal 

or security grounds. 

This section will allow DHS to use the same expedited procedures that are available for the removal of aggravated felons to remove other inadmissible criminal aliens who entered illegally and 

who are otherwise ineligible for relief. At the present time, these 

aliens must be placed in removal proceedings before an immigration judge despite the fact that they are not eligible for any relief. 

Those proceedings can be rescheduled multiple times and take several weeks before the alien is eventually deported. 

Section 611. Technical correction for effective date in change in inadmissibility for terrorists under REAL ID Act. 

Section 103 of the REAL ID Act was designed to ensure the removal of aliens tied to terrorist organizations. However, aliens currently in deportation proceedings initiated before the effective date 

of the Illegal Immigration Reform and Immigrant Responsibility 

Act of 1996 have claimed that the REAL ID Act does not apply to 

73 

them. Section 611 clarifies that the amendments in the terrorist 

grounds of removal in the REAL ID Act are to be applied to aliens 

in all removal, deportation, and exclusion cases, regardless of when 

those cases were initiated. 

Section 612. Bar to good moral character. 

Applicants for certain immigration benefits, including naturalization, voluntary departure, and cancellation of removal, must demonstrate ‘‘good moral character,’’ as defined in the INA. At present, 

although the definition excludes (among others) ‘‘habitual drunkards’’ and gamblers, it does not expressly exclude aliens who are 

terrorists or those who aid or support terrorism. Section 612 corrects this discrepancy by barring terrorist aliens from showing good 

moral character. In addition, because the definition of ‘‘good moral 

character’’ in the INA does not, and could never, cover all situations in which applicants could be shown not to have good moral 

character, this provision gives the Secretary of Homeland Security 

and the Attorney General discretionary authority to make a good 

moral character determination in situations not specifically set 

forth by the definition. The section clarifies that the aggravated felony bar to good moral character applies regardless of when the 

crime was classified as an aggravated felony and clarifies the discretionary authority of DHS to find an alien not to be of good moral 

character may be based upon actions that did not occur within the 

requisite period of time for which good moral character must be established. 

Section 613. Strengthening definitions of ‘‘aggravated felony’’ and 

‘‘conviction.’’ 

The ‘‘aggravated felony’’ definition in the INA covers both murder 

and crimes of violence for which the term of imprisonment is at 

least a year, but significantly, it does not specifically include manslaughter and homicide. Many aliens accused of murder, however, 

will plead to these lesser offenses. Section 613 will ensure that all 

aliens who have taken the life of another are covered by the ‘‘aggravated felony’’ definition. In addition, while the sexual abuse of 

a minor is an aggravated felony, proof in such cases can be limited 

where the victim was a minor, but the offense does not list the 

alien’s minority as an element. Section 613 allows extrinsic evidence to be offered to establish the minority of the victim in a sexual abuse case. The section also prevents State courts from interfering in Federal immigration law by reversing or vacating convictions after they have been entered in order to forestall removal. 

Some State courts have granted requests by criminal aliens to revise their sentences and convictions to allow them to avoid the immigration consequences of their acts, and have even granted these 

requests after aliens have served their sentences. Section 613 

makes it clear that immigration consequences will continue to attach to convictions that have been the subject of post-judicial 

amendment unless that amendment occurred because the alien was 

not guilty of the offense. 

Section 614. Deportability for criminal offenses. 

This section renders removable aliens who have unlawfully procured citizenship as well as aliens convicted of offenses relating to 

74 

25 Institute for Survey Research & Westat, INS Basic Pilot Summary Report at v. 26See id. at 16. 27Pub. L. No. 108–156. 

misuse of Social Security numbers and cards and fraud in connection with identification documents. 

Sections 701–708. Employment Eligibility Verification 

The Immigration Reform and Control Act of 1986 (IRCA) made 

it unlawful for employers to knowingly hire or employ aliens not 

eligible to work and required employers to check the identity and 

work eligibility documents of all new employees. The Act was designed to end the ‘‘job magnet’’ that draws the vast majority of illegal aliens to the United States. Under IRCA, if the documents provided by an employee reasonably appear on their face to be genuine, an employer has met its document review obligation. Unfortunately, the easy availability of counterfeit documents has made a 

mockery of IRCA. Fake documents are produced by the millions 

and can be obtained cheaply. Thus, the current system both benefits unscrupulous employers who do not mind hiring illegal aliens 

but want to show that they have met legal requirements and 

harms employers who do not want to hire illegal aliens but have 

no choice but to accept documents they know have a good likelihood of being counterfeit. 

In the Illegal Immigration Reform and Immigrant Responsibility 

Act of 1996, Congress responded to the deficiencies of IRCA by establishing three employment eligibility verification pilot programs 

for volunteer employers in selected States. Under the basic pilot 

program, the Social Security numbers and alien identification numbers of new hires are checked against Social Security Administration and Department of Homeland Security records in order to 

identify fraudulent numbers and thus to ensure that new hires are 

genuinely eligible to work. A 2001 report on the basic pilot program 

found that ‘‘an overwhelming majority of employers participating 

found the basic pilot program to be an effective and reliable tool 

for employment verification’’ 25—96 percent of employers found it to 

be an effective tool for employment verification; and 94 percent of 

employers believed it to be more reliable than the IRCA-required 

document check.26 In 2003, Congress extended the basic pilot program for another 5 years and made it available to employers Nationwide.27

A basic description of the basic pilot works is detailed below. 

• An employer has 3 days from the date of hire to make an 

inquiry by phone or other electronic means to the confirmation office. If the new hire claims to be a citizen, the employer will transmit his or her name and Social Security 

number. If the new hire claims to be a non-citizen, the employer will transmit his or her name, alien identification 

number and Social Security number. 

• The confirmation office will compare the name and Social Security number provided against information contained in Social Security Administration records and, if necessary, will 

compare the name and DHS-issued number provided against 

information contained in DHS records. 

75 

• If in checking the records, the confirmation office ascertains 

that the new hire is eligible to work, the operator will within 

3 days so inform the employer. If the confirmation office cannot confirm the work eligibility of the new hire, it will within 

3 days so inform the employer of a tentative nonconfirmation. 

• If a new hire does not contest the tentative nonconfirmation, 

it shall be considered a final nonconfirmation. If a new hire 

wishes to contest the tentative nonconfirmation, secondary 

verification will be undertaken. Secondary verification is an 

expedited procedure set up to confirm the validity of information contained in the Government records and provided 

by the new hire. Under this process, the new hire will typically contact or visit the Social Security Administration and/ 

or DHS to see why the Government records disagree with 

the information he or she has provided. If the new hire requests secondary verification, he or she cannot be fired on 

the basis of the tentative nonconfirmation. 

• If the discrepancy can be reconciled within 10 days, then 

confirmation of work eligibility will be given to the employer 

by the end of this period. If the discrepancy cannot be reconciled within 10 days, final denial of confirmation will be 

given by the end of this period. The employer then has two 

options. It can dismiss the new hire as being ineligible to 

work in the United States or it can continue to employ the 

new hire. If the employer continues to employ the new hire, 

it must notify DHS of this decision or be subject to penalty. 

If legal action is brought by the Government subsequent to 

such notification, the employer is then subject to a rebuttable presumption that it has knowingly hired an illegal 

alien. 

Title VII will make participation in the basic pilot program mandatory for all employers within 2 years of enactment. It will also 

expand the system to provide for verification of previously-hired 

employees. Employers will be able to use the system to verify previously-hired employees on a voluntary basis (as long as they do 

not do so in a discriminatory manner) 2 years after enactment. By 

3 years after enactment, Federal, State, and local governments and 

the military must verify the employment eligibility of all workers 

who have not been previously subject to verification under the system, as must other employers for those employees working at Federal, State or local Government buildings, military bases, nuclear 

energy sites, weapons sites, airports, and critical infrastructure 

sites. By 6 years after enactment, all employers must verify the 

employment eligibility of all workers who have not been previously 

subject to verification under the system. 

The title requires DHS to investigate situations in which a Social 

Security number is submitted more than once by the same employer, or where a Social Security number is submitted by multiple 

employers, in a manner that suggests fraud. The title exempts employers from liability who rely in good faith on information provided by the verification system. The title also applies employment 

eligibility verification requirements to day labor sites and other hiring halls. 

76 

28See U.S. General Accounting Office, Border Security—New Policies and Procedures Are 

Needed to Fill Gaps in the Visa Revocation Process at 12, GAO-03-798 (2003). 

The title establishes civil penalties for failure to comply with the 

employment eligibility verification requirements and increases civil 

penalties for knowingly hiring or employing aliens ineligible to 

work or for failing to comply with the I-9 process. 

The title requires the Social Security Administration (SSA) to 

conduct a study on the cost and administrability of the elements 

of Representative David Dreier’s ‘‘Illegal Immigration Enforcement 

and Social Security Protection Act of 2005’’ (H.R. 98). This proposal 

requires: hardened, secure Social Security cards with an electronic 

strip and digital photograph; the creation of a unified database between SSA and DHS for employment eligibility verification; and a 

requirement that employers verify employment eligibility 

verification of new hires by swiping the secure Social Security card 

through an electronic card-reader. 

Section 801. Board of Immigration Appeals removal order authority. 

The Ninth Circuit has given aliens additional opportunities to 

needlessly hinder their removal by requiring the Board of Immigration Appeals (BIA) to remand cases in which it has reversed an immigration judge decision granting an alien relief back to the immigration judge for entry of the order of removal. Section 801 expressly provides the BIA authority to reverse an immigration judge 

decision and enter an order of removal without remanding to the 

immigration judge. 

Section 802. Judicial review of visa revocation. 

The INA allows consular officers to revoke visas after they have 

been issued. However, prior to enactment of the Intelligence Reform and Terrorism Prevention Act of 2004, if a visa was revoked 

after an alien entered the United States, the alien was allowed to 

remain in the United States under the terms of admission since 

there existed no ground of removal for visa revocation. Section 

5304 of the Intelligence Reform Act created a ground of removal for 

aliens whose visas were revoked after entry. This was spurred by 

a Government Accountability Office (GAO) investigation that revealed that the absence of such a ground of removal posed a risk 

to the American people. In October 2002, GAO reported that the 

State Department had revoked 105 visas that had been erroneously 

issued to aliens, about whom there were questions about possible 

terror ties, before their background checks had been completed.28

GAO found that immigration agents did not attempt to track down 

those aliens whose visas had been revoked because of the difficulty 

in removing those aliens from the United States. DHS’ inability to 

remove aliens after their visas were revoked was especially problematic in terrorism cases, because information linking an alien to 

terrorism is often classified, but classified information cannot be 

used to prove deportability. The House acted to close this loophole 

in the Intelligence Reform Act by adding a provision to make visa 

revocation a freestanding ground of removal. However, in conference a modification was added stating that visa revocation decisions would be judicially reviewable if revocation was the sole basis 

77 

29See Morales-Izquierdo v. Ashcroft, 388 F. 3d 1299 (9th Cir. 2004). 

for the order of removal under review. This change has rendered 

the revocation ground of removal worthless as a removal tool. Not 

only could such review disclose the sensitive information that the 

revocation ground of removal is intended to protect, but it would 

also undermine the consular nonreviewability doctrine, and allow 

courts to second-guess all visa denial decisions. Accordingly, section 

802 removes the judicial review provision added in the conference. 

Section 803. Reinstatement. 

Section 241 of the INA provides that the Government may remove an alien who has reentered the country illegally after being 

removed, pursuant to the prior order of removal. This provision is 

meant to preserve judicial resources, and to close the revolving 

door of illegal reentry by allowing DHS to summarily deport aliens 

who have reentered after removal, without having to obtain a new 

removal order from an immigration judge. In accordance with section 241, DHS has promulgated a regulation that permits reinstatement of removal orders by DHS officers. However, the Ninth 

Circuit has recently invalidated DHS’s regulation and held that 

aliens are entitled to have their reinstatement cases adjudicated by 

immigration judges.29 In fiscal year 2004, prior to the Ninth Circuit’s decision, DHS removed 42,886 aliens in that circuit through 

reinstatement. Under the Ninth Circuit’s decision, immigration 

judges now must hear tens of thousands of additional cases annually from aliens ineligible for relief. This is a waste of extremely 

limited resources. Section 803 overrules the Ninth Circuit decision, 

validates DHS’s regulation, and allows the department to deport an 

alien who reentered illegally after being removed without having to 

place the alien in removal proceedings again. 

Section 804. Withholding of removal. 

Section 101(a)(3) of the REAL ID Act requires an asylum applicant to show that one of the five protected characteristics—race, religion, political opinion, nationality, or membership in a particular 

social group—‘‘was or will be at least one central reason’’ why the 

alien was persecuted or fears persecution and thereby is eligible for 

asylum. Section 804 clarifies that the REAL ID motivation standard for asylum applies to withholding of removal. Unless this clarification is made, applicants for withholding, who have traditionally 

borne a higher burden than applicants for asylum, now will be 

found to have a lesser burden. 

Section 805. Certificate of reviewability. 

There has been a drastic increase in the number of petitions for 

review filed in the courts of appeals from immigration decisions in 

the past few years. In fiscal year 2001, there were 1,654 such petitions filed. By 2004, 10,681 immigration petitions for review were 

filed. The vast majority of these petitions, once reviewed, are denied. In 2004, for example, the Board of Immigration Appeals’ determinations were sustained by the courts in over 90 percent of the 

cases decided, a rate that has actually increased since the Board 

adopted its ‘‘streamlining’’ reforms in 2002. Section 805 responds to 

the filing of meritless appeals of removal orders by establishing a 

78 

screening process for aliens’ appeals of BIA decisions. Under this 

provision, appeals will be referred to a single circuit court judge for 

initial review. If that judge decides that the alien has made a substantial showing that the alien’s petition for review is likely to be 

granted, the judge will issue a ‘‘certificate of reviewability’’ allowing 

the case to proceed to a three-judge panel. The provision focuses 

limited judicial resources on those petitions for review with the 

greatest likelihood of proving meritorious. 

Section 806. Waiver of rights in nonimmigrant visa issuance. 

Currently, aliens seeking to enter the United States under the 

visa waiver program must waive access to the Immigration Court 

to challenge removal by any means other than asylum. No similar 

restriction is placed on the other nonimmigrants who are admitted 

annually. Section 806 would impose the same review conditions on 

all nonimmigrant visas that now apply only to visa waiver admissions, and require aliens seeking to enter temporarily to waive 

their ability to contest, other than through asylum, any action to 

deny them admission or remove them. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of Rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

IMMIGRATION AND NATIONALITY ACT 

* * * * * * * 

TABLE OF CONTENTS 

* * * * * * * 

TITLE II—IMMIGRATION

* * * * * * * 

CHAPTER 2—QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL CONTROL OF CITIZENS

AND ALIENS

* * * * * * * 

Sec. 219A. Designation of criminal street gangs. 

* * * * * * * 

CHAPTER 8—GENERAL PENALTY PROVISIONS

* * * * * * * 

øSec. 274. Bringing in and harboring certain aliens.¿ 

Sec. 274. Alien smuggling and related offenses. 

* * * * * * * 

TITLE I—GENERAL 

DEFINITIONS

SECTION 101. (a) As used in this Act— 

(1) * * * 

* * * * * * * 

79 

(43) The term ‘‘aggravated felony’’ means— 

ø(A) murder, rape, or sexual abuse of a minor;¿ 

(A) murder, manslaughter, homicide, rape, or any sexual abuse of a minor, whether or not the minority of the 

victim is established by evidence contained in the record of 

conviction or by evidence extrinsic to the record of conviction; 

* * * * * * * 

(F) a crime of violence (as defined in section 16 of title 

18, United States Code, but not including a purely political 

offense, including a third drunk driving conviction, regardless of the States in which the convictions occurred, and regardless of whether the offenses are deemed to be misdemeanors or felonies under State or Federal law,) for 

which the term of imprisonment at least one year; 

* * * * * * * 

(N) an offense described in øparagraph (1)(A) or (2) of 

section 274(a) (relating to alien smuggling)¿ section 274(a), except in the case of a first offense for which the alien has 

affirmatively shown that the alien committed the offense 

for the purpose of assisting, abetting, or aiding only the 

alien’s spouse, child, or parent (and no other individual) to 

violate a provision of this Act; 

(O) an offense described in øsection 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¿ section 275 or section 276 

for which the term of imprisonment was at least one year; 

* * * * * * * 

(U) soliciting, aiding, abetting, counseling, commanding, inducing, procuring or an attempt or conspiracy 

to commit an offense described in this paragraph. 

øThe term applies to an offense described in this paragraph 

whether in violation of Federal or State law and applies 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. Notwithstanding any other provision of law (including any effective date), the term applies regardless of 

whether the conviction was entered before, on, or after the date 

of enactment of this paragraph.¿ The term applies— 

(i) to an offense described in this paragraph whether in 

violation of Federal or State law and applies 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; 

(ii) even if the length of the term of imprisonment is 

based on recidivist or other enhancements; 

(iii) to an offense described in this paragraph even if 

the statute setting forth the offense of conviction sets forth 

other offenses not described in this paragraph, unless the 

alien affirmatively shows, by a preponderance of evidence 

and using public records related to the conviction, including court records, police records and presentence reports, 

80 

that the particular facts underlying the offense do not satisfy the generic definition of that offense; and 

(iv) regardless of whether the conviction was entered 

before, on, or after September 30, 1996, and notwithstanding any other provision of law (including any effective 

date). 

* * * * * * * 

ø(47)(A) The term ‘‘order of deportation’’ means the order of the 

special inquiry officer, or other such administrative officer to whom 

the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is 

deportable or ordering deportation. 

ø(B) The order described under subparagraph (A) shall become 

final upon the earlier of— 

ø(i) a determination by the Board of Immigration Appeals 

affirming such order; or 

ø(ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.¿ 

(47)(A) The term ‘‘order of removal’’ means the order of the immigration judge, the Board of Immigration Appeals, or other administrative officer to whom the Attorney General or the Secretary 

of Homeland Security has delegated the responsibility for determining whether an alien is removable, concluding that the alien is 

removable or ordering removal. 

(B) The order described under subparagraph (A) shall become 

final upon the earliest of— 

(i) a determination by the Board of Immigration Appeals 

affirming such order; 

(ii) the entry by the Board of Immigration Appeals of such 

order; 

(iii) the expiration of the period in which any party is permitted to seek review of such order by the Board of Immigration 

Appeals; 

(iv) the entry by an immigration judge of such order, if appeal is waived by all parties; or 

(v) the entry by another administrative officer of such 

order, at the conclusion of a process as authorized by law other 

than under section 240. 

(48)(A) The term ‘‘conviction’’ means, with respect to an alien, 

a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— 

(i) * * * 

* * * * * * * 

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 the reversal, vacatur, expungement, or modification was not granted to ameliorate the consequences of the conviction, sentence, or conviction record, for rehabilitative purposes, or 

81 

for failure to advise the alien of the immigration consequences of a 

guilty plea or a determination of guilt. 

* * * * * * * 

(f) For the purposes of this Act— 

No person shall be regarded as, or found to be, a person of 

good moral character who, during the period for which good moral 

character is required to be established, is, or was— 

(1) * * * 

(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 at any time an 

alien described in section 212(a)(3) or section 237(a)(4), which 

determination may be based upon any relevant information or 

evidence, including classified, sensitive, or national security information, and which shall be binding upon any court regardless of the applicable standard of review; 

* * * * * * * 

(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43)), regardless 

whether the crime was classified as an aggravated felony at the 

time of conviction; or 

* * * * * * * 

øThe fact that any person is not within any of the foregoing 

classes shall not preclude a finding that for other reasons such person is or was not of good moral character.¿ 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 and 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. In the case of an alien who makes a false statement 

or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or 

voting to citizens, if each natural parent of the alien (or, in the case 

of an adopted alien, each adoptive parent of the alien) is or was a 

citizen (whether by birth or naturalization), the alien permanently 

resided in the United States prior to attaining the age of 16, and 

the alien reasonably believed at the time of such statement, claim, 

or violation that he or she was a citizen, no finding that the alien 

is, or was, not of good moral character may be made based on it. 

* * * * * * * 

TITLE II—IMMIGRATION 

CHAPTER 1—SELECTION SYSTEM

* * * * * * * 

PROCEDURE FOR GRANTING IMMIGRANT STATUS

SEC. 204. (a) * * * 

82 

(b) After an investigation of the facts in each case, and after 

consultation with the Secretary of Labor with respect to petitions 

to accord a status under section 203(b)(2) or 203(b)(3), the Attorney 

General shall, if he determines that the facts stated in the petition 

are true and that the alien in behalf of whom the petition is made 

is an immediate relative specified in section 201(b) or is eligible for 

preference under subsection (a) or (b) of section 203, approve the 

petition and forward one copy thereof to the Department of State. 

The Secretary of State shall then authorize the consular officer concerned to grant the preference status. No petition shall be approved 

pursuant to this section if there is any administrative or judicial 

proceeding (whether civil or criminal) pending against the petitioner 

that could (whether directly or indirectly) result in the petitioner’s 

denaturalization or the loss of the petitioner’s lawful permanent 

resident status. 

* * * * * * * 

ASYLUM

SEC. 208. (a) * * * 

(b) CONDITIONS FOR GRANTING ASYLUM.— 

(1) * * * 

(2) EXCEPTIONS.— 

(A) IN GENERAL.—Paragraph (1) shall not apply to an 

alien if the Attorney General determines that— 

(i) * * * 

* * * * * * * 

(v) the alien is described in øsubclause (I), (II), 

(III), (IV), or (VI)¿ any subclause of section 

212(a)(3)(B)(i) or section ø237(a)(4)(B)¿ 212(a)(3)(F) 

(relating to terrorist activity), unless, in the case only 

of an alien inadmissible under subclause (IV) or (IX) 

of section 212(a)(3)(B)(i), the Attorney General determines, in the Attorney General’s discretion, that there 

are not reasonable grounds for regarding the alien as 

a danger to the security of the United States; øor¿ 

(vi) the alien is described in section 212(a)(2)(M)(i) 

or section 237(a)(2)(F)(i) (relating to participation in 

criminal street gangs); or 

ø(vi)¿ (vii) the alien was firmly resettled in another country prior to arriving in the United States. 

* * * * * * * 

ADJUSTMENT OF STATUS OF REFUGEES

SEC. 209. (a) * * * 

* * * * * * * 

(c) The provisions of paragraphs (4), (5), and (7)(A) of section 

212(a) shall not be applicable to any alien seeking adjustment of 

status under this section, and the Secretary of Homeland Security 

or the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or 

(E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in 

83 

the public interest. However, an alien who is convicted of an aggravated felony is not eligible for a waiver or for adjustment of status 

under this section. 

* * * * * * * 

CHAPTER 2—QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL

CONTROL OF CITIZENS AND ALIENS

* * * * * * * 

GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND

INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILITY

SEC. 212. (a) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR AD- MISSION.—Except as otherwise provided in this Act, aliens who are 

inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: 

(1) * * * 

(2) CRIMINAL AND RELATED GROUNDS.— (A) CONVICTION OF CERTAIN CRIMES.— (i) IN GENERAL.—Except as provided in clause (ii), 

any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of— 

(I) a crime involving moral turpitude (other 

than a purely political offense) or an attempt or 

conspiracy to commit such a crime, øor¿ 

(II) a violation of (or a conspiracy or attempt 

to violate) any law or regulation of a State, the 

United States, or a foreign country relating to a 

controlled substance (as defined in section 102 of 

the Controlled Substances Act (21 U.S.C. 802)), or 

(III) a violation (or a conspiracy or attempt to 

violate) an offense described in section 208 of the 

Social Security Act or section 1028 of title 18, 

United States Code, 

* * * * * * * 

(J) AGGRAVATED FELONY.—Any alien who is convicted 

of an aggravated felony at any time is inadmissible. 

(K) UNLAWFUL PROCUREMENT OF CITIZENSHIP.—Any 

alien convicted of, or who admits having committed, or who 

admits committing acts which constitute the essential elements of, a violation of (or a conspiracy or attempt to violate) subsection (a) or (b) of section 1425 of title 18, United 

States Code is inadmissible. 

(L) CRIMES OF DOMESTIC VIOLENCE, STALKING, OR VIOLATION OF PROTECTION ORDERS; CRIMES AGAINST CHILDREN.— 

(i) DOMESTIC VIOLENCE, STALKING, OR CHILD

ABUSE.— 

(I) IN GENERAL.—Subject to subclause (II), any 

alien who at any time is convicted of, or who admits having committed, or who admits committing 

acts which constitute the essential elements of, a 

crime of domestic violence, a crime of stalking, or 

84 

a crime of child abuse, child neglect, or child 

abandonment is inadmissible. 

(II) WAIVER FOR VICTIMS OF DOMESTIC VIO- LENCE.—Subclause (I) shall not apply to any alien 

described in section 237(a)(7)(A). 

(III) CRIME OF DOMESTIC VIOLENCE DE- FINED.—For purposes of subclause (I), 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 person for whom the protection order was issued is inadmissible. 

(II) PROTECTION ORDER DEFINED.—For purposes of subclause (I), 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 proceeding. 

(M) CRIMINAL STREET GANG PARTICIPATION.— 

(i) IN GENERAL.—Any alien is inadmissible if the 

alien has been removed under section 237(a)(2)(F), or 

if the consular officer or the Secretary of Homeland Security knows, or has reasonable ground to believe that 

the alien— 

(I) is a member of a criminal street gang and 

has committed, conspired, or threatened to commit, 

or seeks to enter the United States to engage solely, 

principally, or incidentally in, a gang crime or any 

other unlawful activity; or 

(II) is a member of a criminal street gang designated under section 219A. 

(ii) CRIMINAL STREET GANG DEFINED.—For purposes of this subparagraph, the term ‘‘criminal street 

85 

gang’’ means a formal or informal group or association 

of 3 or more individuals, who commit 2 or more gang 

crimes (one of which is a crime of violence, as defined 

in section 16 of title 18, United States Code) in 2 or 

more separate criminal episodes in relation to the 

group or association. 

(iii) GANG CRIME DEFINED.—For purposes of this 

subparagraph, the term ‘‘gang crime’’ means conduct 

constituting any Federal or State crime, punishable by 

imprisonment for one year or more, in any of the following categories: 

(I) A crime of violence (as defined in section 16 

of title 18, United States Code). 

(II) A crime involving obstruction of justice, 

tampering with or retaliating against a witness, 

victim, or informant, or burglary. 

(III) A crime involving the manufacturing, importing, distributing, possessing with intent to distribute, or otherwise dealing in a controlled substance or listed chemical (as those terms are defined in section 102 of the Controlled Substances 

Act (21 U.S.C. 802)). 

(IV) Any conduct punishable under section 844 

of title 18, United States Code (relating to explosive materials), subsection (d), (g)(1) (where the underlying conviction is a violent felony (as defined 

in section 924(e)(2)(B) of such title) or is a serious 

drug offense (as defined in section 924(e)(2)(A)), (i), 

(j), (k), (o), (p), (q), (u), or (x) of section 922 of such 

title (relating to unlawful acts), or subsection (b), 

(c), (g), (h), (k), (l), (m), or (n) of section 924 of such 

title (relating to penalties), section 930 of such title 

(relating to possession of firearms and dangerous 

weapons in Federal facilities), section 931 of such 

title (relating to purchase, ownership, or possession 

of body armor by violent felons), sections 1028 and 

1029 of such title (relating to fraud and related activity in connection with identification documents 

or access devices), 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). 

(V) Any conduct punishable 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 importation of alien for immoral purpose) of this Act. 

(3) SECURITY AND RELATED GROUNDS.— 

86 

(A) * * * 

(B) TERRORIST ACTIVITIES.— (i) * * * 

(ii) EXCEPTION.—øSubclause (VII)¿ Subclause (IX) 

of clause (i) does not apply to a spouse or child— 

(I) * * * 

* * * * * * * 

(6) ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS.— 

(A) * * * 

* * * * * * * 

(C) MISREPRESENTATION.— 

(i) * * * 

(ii) FALSELY CLAIMING CITIZENSHIP OR NATION- ALITY.— (I) IN GENERAL.—Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen or national of the United States 

for any purpose or benefit under this Act (including section 274A) or any other Federal or State 

law is inadmissible. 

(II) EXCEPTION.—In the case of an alien making a representation described in subclause (I), if 

each natural parent of the alien (or, in the case of 

an adopted alien, each adoptive parent of the 

alien) is or was a citizen or national (whether by 

birth or naturalization), the alien permanently resided in the United States prior to attaining the 

age of 16, and the alien reasonably believed at the 

time of making such representation that he or she 

was a citizen or national, the alien shall not be 

considered to be inadmissible under any provision 

of this subsection based on such representation. 

* * * * * * * 

(9) ALIENS PREVIOUSLY REMOVED.— 

(A) CERTAIN ALIENS PREVIOUSLY REMOVED.— 

(i) ARRIVING ALIENS.—Any alien who has been ordered removed under section 235(b)(1) or at the end of 

proceedings under section 240 initiated upon the 

alien’s arrival in the United States and who again 

seeks admission øwithin 5 years of¿ before, or within 

5 years of, the date of such removal (or within 20 

years in the case of a second or subsequent removal or 

at any time in the case of an alien convicted of an aggravated felony) is inadmissible. 

(ii) OTHER ALIENS.—Any alien not described in 

clause (i) who— 

(I) has been ordered removed under section 

240 or any other provision of law, or 

(II) departed the United States while an order 

of removal was outstanding, 

and who seeks admission øwithin 10 years of¿ before, 

or within 10 years of, the date of such alien’s departure or removal (or within 20 years of such date in the 

87 

case of a second or subsequent removal or at any time 

in the case of an alien convicted of an aggravated felony) is inadmissible. 

* * * * * * * 

(h) øThe Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection 

(a)(2)¿ The Attorney General or the Secretary of Homeland Security 

may, in the discretion of the Attorney General or such Secretary, 

waive the application of subparagraph (A)(i)(I), (A)(i)(III), (B), (D), 

(E), (K), and (L) of subsection (a)(2) and subparagraph (A)(i)(II) of 

such subsection insofar as it relates to a single offense of simple 

possession of 30 grams or less of marijuana if— 

(1)(A) in the case of any immigrant it is established to the 

satisfaction of the Attorney General or the Secretary that— 

(i) * * * 

* * * * * * * 

(B) in the case of an immigrant who is the spouse, parent, 

son, or daughter of a citizen of the United States or an alien 

lawfully admitted for permanent residence if it is established 

to the satisfaction of the Attorney General or the Secretary that 

the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, 

parent, son, or daughter of such alien; or 

* * * * * * * 

(2) the øAttorney General, in his discretion,¿ Attorney General or the Secretary of Homeland Security, in the discretion of 

the Attorney General or such Secretary, and pursuant to such 

terms, conditions and procedures øas he¿ as the Attorney General or the Secretary may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status. 

No waiver shall be provided under this subsection in the case of 

an alien who has been convicted of (or who has admitted committing acts that constitute) murder or øcriminal acts involving torture¿ criminal acts involving torture, or an aggravated felony, or an 

attempt or conspiracy to commit murder or a criminal act involving 

torture. No waiver shall be granted under this subsection in the 

case of an alien who has previously been admitted to the United 

States as an alien lawfully admitted for permanent residence øif either since the date of such admission the alien has been convicted 

of an aggravated felony or the alien¿ if since the date of such admission the alien has not lawfully resided continuously in the 

United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from 

the United States. No court shall have jurisdiction to review a decision of the Attorney General or the Secretary to grant or deny a 

waiver under this subsection. 

* * * * * * * 

88 

CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN

SPOUSES AND SONS AND DAUGHTERS

SEC. 216. (a) * * * 

* * * * * * * 

(e) TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZA- TION.—For purposes of title III, in the case of an alien who is in 

the United States as a lawful permanent resident on a conditional 

basis under this section, the alien shall be considered to have been 

admitted as an alien lawfully admitted for permanent residence 

and to be in the United States as an alien lawfully admitted to the 

United States for permanent residence, if the alien has had the 

conditional basis removed under this section. 

* * * * * * * 

CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN

ENTREPRENEURS, SPOUSES, AND CHILDREN

SEC. 216A. (a) * * * 

* * * * * * * 

(e) TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZA- TION.—For purposes of title III, in the case of an alien who is in 

the United States as a lawful permanent resident on a conditional 

basis under this section, the alien shall be considered to have been 

admitted as an alien lawfully admitted for permanent residence 

and to be in the United States as an alien lawfully admitted to the 

United States for permanent residence, if the alien has had the 

conditional basis removed under this section. 

* * * * * * * 

DESIGNATION OF CRIMINAL STREET GANGS

SEC. 219A. (a) DESIGNATION.— (1) IN GENERAL.—The Attorney General is authorized to 

designate a group or association as a criminal street gang in 

accordance with this subsection if the Attorney General finds 

that the group or association meets the criteria described in section 212(a)(2)(M)(ii)(I). 

(2) PROCEDURE.— 

(A) NOTICE.— 

(i) TO CONGRESSIONAL LEADERS.—Seven days before making a designation under this subsection, the 

Attorney General shall notify the Speaker and Minority 

Leader of the House of Representatives and the Majority Leader and Minority Leader of the Senate, and the 

members of the relevant committees of the House of 

Representatives and the Senate, in writing, of the intent to designate a group or association under this subsection, together with the findings made under paragraph (1) with respect to that group or association, and 

the factual basis therefor. 

(ii) PUBLICATION IN FEDERAL REGISTER.—The Attorney shall publish the designation in the Federal 

Register seven days after providing the notification 

under clause (i). 

89 

(B) EFFECT OF DESIGNATION.— 

(i) A designation under this subsection shall take 

effect upon publication under subparagraph (A)(ii). 

(ii) Any designation under this subsection shall 

cease to have effect upon an Act of Congress disapproving such designation. 

(3) RECORD.—In making a designation under this subsection, the Attorney General shall create an administrative 

record. 

(4) PERIOD OF DESIGNATION.— 

(A) IN GENERAL.—A designation under this subsection 

shall be effective for all purposes until revoked under paragraph (5) or (6) or set aside pursuant to subsection (b). 

(B) REVIEW OF DESIGNATION UPON PETITION.— 

(i) IN GENERAL.—The Attorney General shall review the designation of a criminal street gang under 

the procedures set forth in clauses (iii) and (iv) if the 

designated gang or association files a petition for revocation within the petition period described in clause 

(ii). 

(ii) PETITION PERIOD.—For purposes of clause (i)— 

(I) if the designated gang or association has 

not previously filed a petition for revocation under 

this subparagraph, the petition period begins 2 

years after the date on which the designation was 

made; or 

(II) if the designated gang or association has 

previously filed a petition for revocation under this 

subparagraph, the petition period begins 2 years 

after the date of the determination made under 

clause (iv) on that petition. 

(iii) PROCEDURES.—Any criminal street gang that 

submits a petition for revocation under this subparagraph must provide evidence in that petition that the 

relevant circumstances described in paragraph (1) are 

sufficiently different from the circumstances that were 

the basis for the designation such that a revocation 

with respect to the gang is warranted. 

(iv) DETERMINATION.— 

(I) IN GENERAL.—Not later than 180 days after 

receiving a petition for revocation submitted under 

this subparagraph, the Attorney General shall 

make a determination as to such revocation. 

(II) PUBLICATION OF DETERMINATION.—A determination made by the Attorney General under 

this clause shall be published in the Federal Register. 

(III) PROCEDURES.—Any revocation by the Attorney General shall be made in accordance with 

paragraph (6). 

(C) OTHER REVIEW OF DESIGNATION.— 

(i) IN GENERAL.—If in a 5-year period no review 

has taken place under subparagraph (B), the Attorney 

General shall review the designation of the criminal 

90 

street gang in order to determine whether such designation should be revoked pursuant to paragraph (6). 

(ii) PROCEDURES.—If a review does not take place 

pursuant to subparagraph (B) in response to a petition 

for revocation that is filed in accordance with that subparagraph, then the review shall be conducted pursuant to procedures established by the Attorney General. 

The results of such review and the applicable procedures shall not be reviewable in any court. 

(iii) PUBLICATION OF RESULTS OF REVIEW.—The Attorney General shall publish any determination made 

pursuant to this subparagraph in the Federal Register. 

(5) REVOCATION BY ACT OF CONGRESS.—The Congress, by 

an Act of Congress, may block or revoke a designation made 

under paragraph (1). 

(6) REVOCATION BASED ON CHANGE IN CIRCUMSTANCES.— 

(A) IN GENERAL.—The Attorney General may revoke a 

designation made under paragraph (1) at any time, and 

shall revoke a designation upon completion of a review conducted pursuant to subparagraphs (B) and (C) of paragraph (4) if the Attorney General finds that the circumstances that were the basis for the designation have 

changed in such a manner as to warrant revocation. 

(B) PROCEDURE.—The procedural requirements of 

paragraphs (2) and (3) shall apply to a revocation under 

this paragraph. Any revocation shall take effect on the date 

specified in the revocation or upon publication in the Federal Register if no effective date is specified. 

(7) EFFECT OF REVOCATION.—The revocation of a designation under paragraph (5) or (6) shall not affect any action or 

proceeding based on conduct committed prior to the effective 

date of such revocation. 

(8) USE OF DESIGNATION IN HEARING.—If a designation 

under this subsection has become effective under paragraph 

(2)(B) an alien in a removal proceeding shall not be permitted 

to raise any question concerning the validity of the issuance of 

such designation as a defense or an objection at any hearing. 

(b) JUDICIAL REVIEW OF DESIGNATION.— (1) IN GENERAL.—Not later than 30 days after publication 

of the designation in the Federal Register, a group or association designated as a criminal street gang may seek judicial review of the designation in the United States Court of Appeals 

for the District of Columbia Circuit. 

(2) BASIS OF REVIEW.—Review under this subsection shall 

be based solely upon the administrative record. 

(3) SCOPE OF REVIEW.—The Court shall hold unlawful and 

set aside a designation the court finds to be— 

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 

(B) contrary to constitutional right, power, privilege, or 

immunity; 

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; 

(D) lacking substantial support in the administrative 

record taken as a whole; or 

91 

(E) not in accord with the procedures required by law. 

(4) JUDICIAL REVIEW INVOKED.—The pendency of an action 

for judicial review of a designation shall not affect the application of this section, unless the court issues a final order setting 

aside the designation. 

(c) RELEVANT COMMITTEE DEFINED.—As used in this section, 

the term ‘‘relevant committees’’ means the Committees on the Judiciary of the House of Representatives and of the Senate. 

* * * * * * * 

CHAPTER 3—ISSUANCE OF ENTRY DOCUMENTS

ISSUANCE OF VISAS

SEC. 221. (a)(1) * * * 

* * * * * * * 

(3) An alien may not be issued a nonimmigrant visa unless the 

alien has waived any right— 

(A) to review or appeal under this Act of an immigration 

officer’s determination as to the inadmissibility of the alien at 

the port of entry into the United States; or 

(B) to contest, other than on the basis of an application for 

asylum, any action for removal of the alien. 

* * * * * * * 

(i) After the issuance of a visa or other documentation to any 

alien, the consular officer or the Secretary of State may at any 

time, in his discretion, revoke such visa or other documentation. 

Notice of such revocation shall be communicated to the Attorney 

General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or 

transportation companies, and masters, commanding officers, 

agents, owners, charterers, or consignees, shall not be penalized 

under section 273(b) for action taken in reliance on such visas or 

other documentation, unless they received due notice of such revocation prior to the alien’s embarkation. øThere shall be no means 

of judicial review (including review pursuant to section 2241 of title 

28, United States Code, or any other habeas corpus provision, and 

sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 

237(a)(1)(B).¿ Notwithstanding any other provision of law (statutory 

or nonstatutory), including section 2241 of title 28, United States 

Code, or 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. 

* * * * * * * 

CHAPTER 4—INSPECTION, APPREHENSION, EXAMINATION, EXCLUSION, AND REMOVAL

* * * * * * * 

92 

INSPECTION BY IMMIGRATION OFFICERS; EXPEDITED REMOVAL OF

INADMISSIBLE ARRIVING ALIENS; REFERRAL FOR HEARING

SEC. 235. (a) * * * 

(b) INSPECTION OF APPLICANTS FOR ADMISSION.— 

(1) INSPECTION OF ALIENS ARRIVING IN THE UNITED STATES

AND CERTAIN OTHER ALIENS WHO HAVE NOT BEEN ADMITTED OR

PAROLED.— 

(A) SCREENING.— 

(i) * * * 

* * * * * * * 

(iii) APPLICATION TO CERTAIN OTHER ALIENS.— 

(I) IN GENERAL.—The øAttorney General¿ Secretary of Homeland Security may apply clauses (i) 

and (ii) of this subparagraph to any or all aliens 

described in subclause (II) as designated by the 

øAttorney General¿ Secretary of Homeland Security. Such designation shall be in the sole and 

unreviewable discretion of the øAttorney General¿ 

Secretary of Homeland Security and may be modified at any time. 

* * * * * * * 

(III) EXCEPTION.—Notwithstanding subclauses 

(I) and (II), the Secretary of Homeland Security 

shall apply clauses (i) and (ii) of this subparagraph to any alien (other than an alien described 

in subparagraph (F)) who is not a national of a 

country contiguous to the United States, who has 

not been admitted or paroled into the United 

States, and who is apprehended within 100 miles 

of an international land border of the United 

States and within 14 days of entry. 

* * * * * * * 

(F) EXCEPTION.—Subparagraph (A) shall not apply to 

an alien who is a native or citizen of a country in the 

Western Hemisphere with whose government the United 

States does not have full diplomatic relations and øwho arrives by aircraft at a port of entry¿, and who arrives by 

aircraft at a port of entry or who is present in the United 

States and arrived in any manner at or between a port of 

entry. 

* * * * * * * 

APPREHENSION AND DETENTION OF ALIENS

SEC. 236. (a) * * * 

* * * * * * * 

(c) DETENTION OF CRIMINAL ALIENS.— 

(1) CUSTODY.—The Attorney General shall take into custody any alien who— 

(A) * * * 

* * * * * * * 

93 

(D) is inadmissible under section 212(a)(3)(B) or 

212(a)(2)(M) or deportable under section 237(a)(2)(F) or 

237(a)(4)(B), 

* * * * * * * 

GENERAL CLASSES OF DEPORTABLE ALIENS

SEC. 237. (a) CLASSES OF DEPORTABLE ALIENS.—Any alien (including an alien crewman) in and admitted to the United States 

shall, upon the order of the Attorney General, be removed if the 

alien is within one or more of the following classes of deportable 

aliens: 

(1) * * * 

(2) CRIMINAL OFFENSES.— (A) * * * 

* * * * * * * 

(F) CRIMINAL STREET GANG PARTICIPATION.— 

(i) IN GENERAL.—Any alien is deportable who— 

(I) is a member of a criminal street gang and 

is convicted of committing, or conspiring, threatening, or attempting to commit, a gang crime; or 

(II) is determined by the Secretary of Homeland Security to be a member of a criminal street 

gang designated under section 219A. 

(ii) DEFINITIONS.—For purposes of this subparagraph, the terms ‘‘criminal street gang’’ and ‘‘gang 

crime’’ have the meaning given such terms in section 

212(a)(2)(M). 

(G) SOCIAL SECURITY AND IDENTIFICATION FRAUD.— 

Any alien who at any time after admission is convicted of 

a violation of (or a conspiracy or attempt to violate) an offense described in section 208 of the Social Security Act or 

section 1028 of title 18, United States Code is deportable. 

(3) FAILURE TO REGISTER AND FALSIFICATION OF DOCUMENTS.— 

(A) * * * 

(B) FAILURE TO REGISTER OR FALSIFICATION OF DOCUMENTS.—Any alien who at any time has been convicted— 

(i) * * * 

(ii) of a violation of, or an attempt or a conspiracy 

to violate, any provision of the Foreign Agents Registration Act of 1938 (22 U.S.C. 611 et seq.), øor¿ 

(iii) of a violation of, or an attempt or a conspiracy 

to violate, section 1546 of title 18, United States Code 

(relating to fraud and misuse of visas, permits, and 

other entry documents), or 

(iv) of a violation of, or an attempt or a conspiracy 

to violate, subsection (a) or (b) of section 1425 of title 

18, United States Code, 

* * * * * * * 

EXPEDITED REMOVAL OF ALIENS CONVICTED OF COMMITTING

AGGRAVATED FELONIES

SEC. 238. (a) * * * 

94 

(b) REMOVAL OF ALIENS WHO ARE NOT PERMANENT RESIDENTS.— 

(1) The øAttorney General¿ Secretary of Homeland Security in the exercise of discretion may, in the case of an alien described in paragraph (2), determine the deportability of such 

alien under section 237(a)(2)(A)(iii) (relating to conviction of an 

aggravated felony) and issue an order of removal pursuant to 

the procedures øset forth in this subsection or¿ set forth in this 

subsection, in lieu of removal proceedings under section 240. 

* * * * * * * 

(3) The Secretary of Homeland Security in the exercise of 

discretion may determine inadmissibility under section 

212(a)(2) (relating to criminal offenses) and issue an order of 

removal pursuant to the procedures set forth in this subsection, 

in lieu of removal proceedings under section 240, with respect 

to an alien who 

(A) has not been admitted or paroled; 

(B) has not been found to have a credible fear of persecution pursuant to the procedures set forth in section 

235(b)(1)(B); and 

(C) is not eligible for a waiver of inadmissibility or relief from removal. 

ø(3)¿ (4) The øAttorney General¿ Secretary of Homeland 

Security may not execute any order described in øparagraph 

(1) until 14 calendar days¿ paragraph (1) or (3) until 7 calendar days have passed from the date that such order was 

issued, unless waived by the alien, in order that the alien has 

an opportunity to apply for judicial review under section 242. 

ø(4)¿ (5) Proceedings before the øAttorney General¿ Secretary of Homeland Security under this subsection shall be in 

accordance with such regulations as the øAttorney General¿ 

Secretary of Homeland Security shall prescribe. The øAttorney 

General¿ Secretary of Homeland Security shall provide that— 

(A) * * * 

* * * * * * * 

ø(5)¿ (6) No alien ødescribed in this section¿ described in 

paragraph (1) or (2) shall be eligible for any relief from removal that øthe Attorney General may grant in the Attorney 

General’s discretion¿ the Secretary of Homeland Security or the 

Attorney General may grant, in the discretion of the Secretary 

or Attorney General, in any proceeding. 

* * * * * * * 

CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS

SEC. 240A. (a) * * * 

* * * * * * * 

(c) ALIENS INELIGIBLE FOR RELIEF.—The provisions of subsections (a) and (b)(1) shall not apply to any of the following aliens: 

(1) * * * 

* * * * * * * 

95 

(4) An alien who is øinadmissible under¿ described in section 212(a)(3) or ødeportable under¿ described in section 

237(a)(4). 

* * * * * * * 

VOLUNTARY DEPARTURE

SEC. 240B. (a) CERTAIN CONDITIONS.— ø(1) IN GENERAL.—The Attorney General may permit an 

alien voluntarily to depart the United States at the alien’s own 

expense under this subsection, in lieu of being subject to proceedings under section 240 or prior to the completion of such 

proceedings, if the alien is not deportable under section 

237(a)(2)(A)(iii) or section 237(a)(4)(B).¿ 

(1) IN LIEU OF REMOVAL PROCEEDINGS.—The Secretary of 

Homeland Security may permit an alien voluntarily to depart 

the United States at the alien’s own expense under this subsection, in lieu of being subject to proceedings under section 

240, if the alien is not described in section 237(a)(2)(A)(iii) or 

section 237(a)(4). 

(2) PRIOR TO THE CONCLUSION OF REMOVAL PRO- CEEDINGS.—After removal proceedings under section 240 are 

initiated, the Attorney General may permit an alien voluntarily 

to depart the United States at the alien’s own expense under 

this subsection, prior to the conclusion of such proceedings before an immigration judge, if the alien is not described in section 237(a)(2)(A)(iii) or section 237(a)(4). 

ø(2)¿ (3) PERIOD.— ø(A) IN GENERAL.—Subject to subparagraph (B), permission to depart voluntarily under this subsection shall 

not be valid for a period exceeding 120 days.¿ 

(A) IN LIEU OF REMOVAL.—Subject to subparagraph 

(C), permission to depart voluntarily under paragraph (1) 

shall not be valid for a period exceeding 120 days. The Secretary of Homeland Security may require an alien permitted to depart voluntarily 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. 

(B) PRIOR TO THE CONCLUSION OF REMOVAL PROCEEDINGS.—Permission to depart voluntarily under paragraph (2) shall not be valid for a period exceeding 60 days, 

and may be granted only after a finding that the alien has 

established that the alien has the means to depart the 

United States and intends to do so. An alien permitted to 

depart voluntarily under paragraph (2) must post a voluntary departure bond, in an amount necessary to ensure 

that the alien will depart, to be surrendered upon proof 

that the alien has departed the United States within the 

time specified. An immigration judge may waive posting of 

a voluntary departure bond in individual cases upon a 

finding that the alien has presented compelling evidence 

that the posting of a bond will be a serious financial hardship and the alien has presented credible evidence that 

such a bond is unnecessary to guarantee timely departure. 

96 

ø(B)¿ (C) Three YEAR PILOT PROGRAM WAIVER.—During 

the period October 1, 2000, through September 30, 2003, 

and subject to øsubparagraphs (C) and (D)(ii)¿ subparagraphs (D) and (E)(ii), the Attorney General may, in the 

discretion of the Attorney General for humanitarian purposes, waive application of subparagraph (A) in the case of 

an alien— 

(i) * * * 

* * * * * * * 

ø(C)¿ (D) WAIVER LIMITATIONS.— (i) Waivers under øsubparagraph (B)¿ subparagraph (C) may be granted only upon a request submitted by a Service district office to Service headquarters. 

(ii) Not more than 300 waivers may be granted for 

any fiscal year for a principal alien under øsubparagraph (B)¿ subparagraph (C)(i). 

(iii)(I) Except as provided in subclause (II), in the 

case of each principal alien described in øsubparagraph (B)¿ subparagraph (C)(i) not more than one 

adult may be granted a waiver under øsubparagraph 

(B)¿ subparagraph (C)(ii). 

(II) Not more than two adults may be granted a 

waiver under øsubparagraph (B)¿ subparagraph (C)(ii) 

in a case in which— 

(aa) the principal alien described in øsubparagraph (B)¿ subparagraph (C)(i) is a dependent 

under the age of 18; or 

(bb) one such adult is age 55 or older or is 

physically handicapped. 

ø(D)¿ (E) REPORT TO CONGRESS; SUSPENSION OF WAIV- ER AUTHORITY.— (i) Not later than March 30 of each year, the Commissioner shall submit to the Congress an annual report regarding all waivers granted under øsubparagraph (B)¿ subparagraph (C) during the preceding fiscal year. 

(ii) Notwithstanding any other provision of law, 

the authority of the Attorney General under øsubparagraph (B)¿ subparagraph (C) shall be suspended during any period in which an annual report under clause 

(i) is past due and has not been submitted. 

ø(3) BOND.—The Attorney General may require an alien 

permitted to depart voluntarily under this subsection to post a 

voluntary departure bond, to be surrendered upon proof that 

the alien has departed the United States within the time specified.¿ 

(4) TREATMENT OF ALIENS ARRIVING IN THE UNITED

STATES.—In the case of an alien who is arriving in the United 

States and with respect to whom proceedings under section 240 

are (or would otherwise be) initiated at the time of such alien’s 

arrival, øparagraph (1)¿ paragraphs (1) and (2) shall not apply. 

Nothing in this paragraph shall be construed as preventing 

such an alien from withdrawing the application for admission 

in accordance with section 235(a)(4). 

97 

(b) AT CONCLUSION OF PROCEEDINGS.— (1) IN GENERAL.—The Attorney General may permit an 

alien voluntarily to depart the United States at the alien’s own 

expense if, at the conclusion of a proceeding under section 240, 

the immigration judge enters an order granting voluntary departure in lieu of removal and finds that— 

(A) * * * 

* * * * * * * 

(C) the alien is not ødeportable under¿ described in 

section 237(a)(2)(A)(iii) or section 237(a)(4); and 

* * * * * * * 

(2) PERIOD.—Permission to depart voluntarily under this 

subsection shall not be valid for a period exceeding ø60¿ 45 

days. 

* * * * * * * 

ø(c) ALIENS NOT ELIGIBLE.—The Attorney General shall not 

permit an alien to depart voluntarily under this section if the alien 

was previously permitted to so depart after having been found inadmissible under section 212(a)(6)(A).¿ 

(c) CONDITIONS ON VOLUNTARY DEPARTURE.— (1) VOLUNTARY DEPARTURE AGREEMENT.—Voluntary departure will be granted only 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 in the exercise of discretion may agree to a reduction in the period of inadmissibility 

under subparagraph (A) or (B)(i) of section 212(a)(9). 

(3) FAILURE TO COMPLY WITH AGREEMENT AND EFFECT OF

FILING TIMELY APPEAL.—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 a failure 

to timely post any required bond), the alien automatically becomes ineligible for the benefits of the agreement, subject to the 

penalties described in subsection (d), and subject to an alternate 

order of removal if voluntary departure was granted under subsection (a)(2) or (b). However, if an alien agrees to voluntary departure but later 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 thereof, but the alien may 

not again be granted voluntary departure while the alien remains in the United States. 

(4) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED.—Except 

as expressly agreed to by the Secretary of Homeland Security 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 

98 

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. 

ø(d) CIVIL PENALTY FOR FAILURE TO DEPART.—If an alien is 

permitted to depart voluntarily under this section and fails voluntarily to depart the United States within the time period specified, 

the alien shall be subject to a civil penalty of not less than $1,000 

and not more than $5,000, and be ineligible for a period of 10 years 

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. 

ø(e) ADDITIONAL CONDITIONS.—The Attorney General may by 

regulation limit eligibility for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection.¿ 

(d) PENALTIES FOR FAILURE TO DEPART.—If an alien is permitted to depart voluntarily under this section and fails voluntarily 

to depart from the United States within the time period specified or 

otherwise violates the terms of a voluntary departure agreement, the 

following provisions apply: 

(1) CIVIL PENALTY.— 

(A) IN GENERAL.—The alien will be liable for a civil 

penalty of $3,000. 

(B) SPECIFICATION IN ORDER.—The order allowing voluntary departure shall specify the amount of the penalty, 

which shall be acknowledged by the alien on the record. 

(C) COLLECTION.—If the Secretary of Homeland Security 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. 

(D) INELIGIBILITY FOR BENEFITS.—An alien will be ineligible for any benefits under this title until any civil penalty under this subsection is paid. 

(2) INELIGIBILITY FOR RELIEF.—The alien will 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. 

(3) REOPENING.— 

(A) IN GENERAL.—Subject to subparagraph (B), the 

alien will be ineligible to reopen a final order of removal 

which took effect upon the alien’s failure to depart, or the 

alien’s violation of the conditions for voluntary departure, 

during the period described in paragraph (2). 

(B) EXCEPTION.—Subparagraph (A) does not preclude 

a motion to reopen to seek withholding of removal under 

section 241(b)(3) or protection against torture. 

The order permitting the alien to depart voluntarily under this 

section shall inform the alien of the penalties under this subsection. 

(e) ELIGIBILITY.— 

(1) PRIOR GRANT OF VOLUNTARY DEPARTURE.—An alien 

shall not be permitted to depart voluntarily under this section 

99 

if the Secretary of Homeland Security or the Attorney General 

previously permitted the alien to depart voluntarily. 

(2) ADDITIONAL LIMITATIONS.—The Secretary of Homeland 

Security may by regulation limit eligibility or impose additional 

conditions for voluntary departure under subsection (a)(1) for 

any class or classes of aliens. The Secretary or Attorney General 

may by regulation limit eligibility or impose additional conditions for voluntary departure under subsection (a)(2) or (b) for 

any class or classes of aliens. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 

of title 28, United States Code, or any other habeas corpus provision, and section 1361 and 1651 of such title, no court may 

review any regulation issued under this subsection. 

(f) JUDICIAL REVIEW.—No court shall have jurisdiction over an 

appeal from denial of a request for an order of voluntary departure 

under subsection (b), nor shall any court order a stay of an alien’s 

removal pending consideration of any claim with respect to voluntary departure. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United 

States Code, or any other habeas corpus provision, and section 1361 

and 1651 of such title, no court shall have jurisdiction to affect, reinstate, enjoin, delay, stay, or toll the period allowed for voluntary 

departure under this section. 

DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED

SEC. 241. (a) DETENTION, RELEASE, AND REMOVAL OF ALIENS

ORDERED REMOVED.— 

(1) REMOVAL PERIOD.— 

(A) IN GENERAL.—Except as otherwise provided in this 

section, when an alien is ordered removed, the øAttorney 

General¿ Secretary of Homeland Security shall remove the 

alien from the United States within a period of 90 days (in 

this section referred to as the ‘‘removal period’’). 

(B) BEGINNING OF PERIOD.—The removal period begins 

on the latest of the following: 

(i) * * * 

ø(ii) If the removal order is judicially reviewed 

and if a court orders a stay of the removal of the alien, 

the date of the court’s final order.¿ 

(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. 

* * * * * * * 

If, at that time, the alien is not in the custody of the Secretary (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. 

100 

ø(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 fails or refuses to make timely application in 

good faith for travel or other documents necessary to the 

alien’s departure or conspires or acts to prevent the alien’s 

removal subject to an order of removal.¿ 

(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 fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the 

Secretary’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, or conspires or acts to prevent the alien’s 

removal subject to an order of removal. 

(2) DETENTION.—During the removal period, the øAttorney 

General¿ Secretary of Homeland Security shall detain the 

alien. Under no circumstance during the removal period shall 

the øAttorney General¿ Secretary of Homeland Security release 

an alien who has been found inadmissible under section 

212(a)(2) or 212(a)(3)(B) or deportable under section 237(a)(2) 

or 237(a)(4)(B). If a court orders a stay of removal of an alien 

who is subject to an administratively final order of removal, the 

Secretary in the exercise of discretion may detain the alien during the pendency of such stay of removal. 

(3) SUPERVISION AFTER 90-DAY PERIOD.—If the alien does 

not leave or is not removed within the removal period, the 

alien, pending removal, shall be subject to supervision under 

regulations prescribed by the øAttorney General¿ Secretary of 

Homeland Security. The regulations shall include provisions 

requiring the alien— 

(A) * * * 

* * * * * * * 

(C) to give information under oath about the alien’s 

nationality, circumstances, habits, associations, and activities, and other information the øAttorney General¿ Secretary of Homeland Security considers appropriate; and 

ø(D) to obey reasonable written restrictions on the 

alien’s conduct or activities that the Attorney General prescribes for the alien.¿ 

(D) to obey reasonable restrictions on the alien’s conduct or activities, or perform affirmative acts, that the Secretary prescribes for the alien, in order to prevent the alien 

from absconding, or for the protection of the community, or 

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

(4) ALIENS IMPRISONED, ARRESTED, OR ON PAROLE, SUPER- VISED RELEASE, OR PROBATION.— (A) IN GENERAL.—Except as provided in section 343(a) 

of the Public Health Service Act (42 U.S.C. 259(a)) and 

paragraph (2), the øAttorney General¿ Secretary of Homeland Security may not remove an alien who is sentenced 

to imprisonment until the alien is released from imprisonVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00104 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
101 

ment. Parole, supervised release, probation, or possibility 

of arrest or further imprisonment is not a reason to defer 

removal. 

(B) EXCEPTION FOR REMOVAL OF NONVIOLENT OFFENDERS PRIOR TO COMPLETION OF SENTENCE OF IMPRISONMENT.—The øAttorney General¿ Secretary of Homeland 

Security is authorized to remove an alien in accordance 

with applicable procedures under this Act before the alien 

has completed a sentence of imprisonment— 

(i) in the case of an alien in the custody of the 

øAttorney General¿ Secretary of Homeland Security, if 

the øAttorney General¿ Secretary of Homeland Security determines that (I) the alien is confined pursuant 

to a final conviction for a nonviolent offense (other 

than an offense related to smuggling or harboring of 

aliens or an offense described in section 101(a)(43)(B), 

(C), (E), (I), or (L) and (II) the removal of the alien is 

appropriate and in the best interest of the United 

States; or 

(ii) in the case of an alien in the custody of a State 

(or a political subdivision of a State), if the chief State 

official exercising authority with respect to the incarceration of the alien determines that (I) the alien is 

confined pursuant to a final conviction for a nonviolent 

offense (other than an offense described in section 

101(a)(43)(C) or (E)), (II) the removal is appropriate 

and in the best interest of the State, and (III) submits 

a written request to the øAttorney General¿ Secretary 

of Homeland Security that such alien be so removed. 

* * * * * * * 

ø(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS

ILLEGALLY REENTERING.—If the Attorney General finds that an 

alien has reentered the United States illegally after having 

been removed or having departed voluntarily, under an order 

of removal, the prior order of removal is reinstated from its 

original date and is not subject to being reopened or reviewed, 

the alien is not eligible and may not apply for any relief under 

this Act, and the alien shall be removed under the prior order 

at any time after the reentry.¿ 

(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS

ILLEGALLY REENTERING.—If the Secretary of Homeland Security 

finds that an alien has entered the United States illegally after 

having been removed or having departed voluntarily, under an 

order of removal, deportation, or exclusion, regardless of the 

date of the original order or the date of the illegal entry— 

(A) the order of removal, deportation, or exclusion is reinstated from its original date and is not subject to being 

reopened or reviewed; 

(B) the alien is not eligible and may not apply for any 

relief under this Act, regardless of the date that an application for such relief may have been filed; and 

(C) the alien shall be removed under the order of removal, deportation, or exclusion at any time after the illegal entry. 

102 

Reinstatement under this paragraph shall not require proceedings before an immigration judge under section 240 or otherwise. 

(6) INADMISSIBLE OR CRIMINAL ALIENS.—An alien ordered 

removed who is inadmissible under section 212, removable 

under section 237(a)(1)(C), 237(a)(2), or 237(a)(4) or who has 

been determined by the øAttorney General¿ Secretary of Homeland Security to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the øremoval period and, if released,¿ removal period, in the discretion 

of the Secretary, without any limitations other than those specified in this section, until the alien is removed. If an alien is released, the alien shall be subject to the terms of supervision in 

paragraph (3). 

(7) PAROLE.—If an alien detained pursuant to paragraph 

(6) is an applicant for admission, the Secretary, in the Secretary’s discretion, may parole the alien under section 212(d)(5) 

of this Act 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 alien’s parole or the alien’s 

removal becomes reasonably foreseeable, provided that in no 

circumstance shall such alien be considered admitted. 

(8) APPLICATION OF ADDITIONAL RULES FOR DETENTION OR

RELEASE OF CERTAIN ALIENS WHO HAVE MADE AN ENTRY.—The 

procedures described in subsection (j) shall only apply with respect to an alien who— 

(A) was lawfully admitted the most recent time the 

alien entered the United States or has otherwise effected an 

entry into the United States, and 

(B) is not detained under paragraph (6). 

(9) JUDICIAL REVIEW.—Without regard to the place of confinement, judicial review of any action or decision pursuant to 

paragraphs (6), (7), or (8) or subsection (j) shall be available exclusively in habeas corpus proceedings instituted in the United 

States District Court for the District of Columbia, and only if 

the alien has exhausted all administrative remedies (statutory 

and regulatory) available to the alien as of right. 

ø(7)¿ (10) EMPLOYMENT AUTHORIZATION.—No alien ordered 

removed shall be eligible to receive authorization to be employed in the United States unless the øAttorney General¿ Secretary of Homeland Security makes a specific finding that— 

(A) * * * 

* * * * * * * 

(b) COUNTRIES TO WHICH ALIENS MAY BE REMOVED.— 

(1) * * * 

* * * * * * * 

(3) RESTRICTION ON REMOVAL TO A COUNTRY WHERE ALIEN’S

LIFE OR FREEDOM WOULD BE THREATENED.— 

(A) IN GENERAL.—Notwithstanding paragraphs (1) and 

(2), the øAttorney General¿ Secretary of Homeland Security may not remove an alien to a country if the Attorney 

General or the Secretary decides that the alien’s life or 

freedom would be threatened in that country because of 

the alien’s race, religion, nationality, membership in a parVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00106 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
103 

ticular social group, or political opinion. The burden of 

proof is on the alien to establish that the alien’s life or freedom would be threatened in that country, and that race, religion, nationality, membership in a particular social 

group, or political opinion would be at least one central 

reason for such threat. 

(B) EXCEPTION.—Subparagraph (A) does not apply to 

an alien who is described in section 212(a)(2)(M)(i) or section 237(a)(2)(F)(i) or who is deportable under section 

237(a)(4)(D) or if the Attorney General or the Secretary of 

Homeland Security decides that— 

(i) * * * 

* * * * * * * 

(iii) there are serious reasons to believe that the 

alien committed a serious nonpolitical crime outside 

the United States before the alien arrived in the 

United States; øor¿ 

(iv) there are reasonable grounds to believe that 

the alien is a danger to the security of the United 

Statesø.¿; or 

(v) the alien is described in any subclause of section 212(a)(3)(B)(i) or section 212(a)(3)(F), unless, in 

the case only of an alien described in subclause (IV) or 

(IX) of section 212(a)(3)(B)(i), the Secretary of Homeland Security determines, in the Secretary’s discretion, 

that there are not reasonable grounds for regarding the 

alien as a danger to the security of the United States. 

For purposes of clause (ii), an alien who has been convicted 

of an aggravated felony (or felonies) for which the alien 

has been sentenced to an aggregate term of imprisonment 

of at least 5 years shall be considered to have committed 

a particularly serious crime. The previous sentence shall 

not preclude the Attorney General or the Secretary of 

Homeland Security from determining that, notwithstanding the length of sentence imposed, an alien has been 

convicted of a particularly serious crime. øFor 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.¿ 

(C) SUSTAINING BURDEN OF PROOF; CREDIBILITY DETERMINATIONS.—øIn determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in subparagraph (A)¿ For purposes of this paragraph, the trier of fact shall determine 

whether the alien has sustained the alien’s burden of 

proof, and shall make credibility determinations, in the 

manner described in clauses (ii) and (iii) of section 

208(b)(1)(B). 

* * * * * * * 

(j) ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN

ALIENS WHO HAVE MADE AN ENTRY.— 

104 

(1) APPLICATION.—The procedures described in this subsection apply in the case of an alien described in subsection 

(a)(8). 

(2) ESTABLISHMENT OF A DETENTION REVIEW PROCESS FOR

ALIENS WHO FULLY COOPERATE WITH REMOVAL.— 

(A) IN GENERAL.—The Secretary shall establish an administrative review process to determine whether the aliens 

should be detained or released on conditions for aliens 

who— 

(i) have made all reasonable efforts to comply with 

their removal orders; 

(ii) have complied with the Secretary’s efforts to 

carry out the removal orders, including making timely 

application in good faith for travel or other documents 

necessary to the alien’s departure, and 

(iii) have not conspired or acted to prevent removal. 

(B) DETERMINATION.—The Secretary shall make a determination whether to release an alien after the removal 

period in accordance with paragraphs (3) and (4). The determination— 

(i) shall include consideration of any evidence submitted by the alien and the history of the alien’s efforts 

to comply with the order of removal, and 

(ii) may include 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. 

(3) AUTHORITY TO DETAIN BEYOND THE REMOVAL PERIOD .— 

(A) INITIAL 90 DAY PERIOD.—The Secretary 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 subsection (a)(1)(C)). 

(B) EXTENSION.— 

(i) IN GENERAL.—The Secretary in the exercise of 

discretion, without any limitations other than those 

specified in this section, may continue to detain an 

alien beyond the 90 days authorized in subparagraph 

(A) if the conditions described in subparagraph (A), 

(B), or (C) of paragraph (4) apply. 

(ii) RENEWAL.—The Secretary may renew a certification under paragraph (4)(A) every six months 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 a certification, the Secretary may not continue to detain the 

alien under such paragraph. 

(iii) DELEGATION.—Notwithstanding section 103, 

the Secretary may not delegate the authority to make 

or renew a certification described in clause (ii), (iii), or 

(v) of paragraph (4)(B) below the level of the Assistant 

Secretary for Immigration and Customs Enforcement. 

105 

(iv) HEARING.—The Secretary may request that the 

Attorney General provide for a hearing to make the determination described in clause (iv)(II) of paragraph 

(4)(B). 

(4) CONDITIONS FOR EXTENSION.—The conditions for continuation of detention are any of the following: 

(A) 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 alien’s 

failure or refusal to make all reasonable efforts to comply with the removal order, or to fully cooperate with 

the Secretary’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, or conspiracies or acts to prevent removal. 

(B) The Secretary certifies in writing any of the following: 

(i) In consultation with the Secretary of Health 

and Human Services, 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, the 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 (including available information from the intelligence community, and without regard to the grounds 

upon which the alien was ordered removed), there is 

reason to believe that the release of the alien would 

threaten the national security of the United States. 

(iv) The release of the alien will threaten the safety 

of the community or any person, the conditions of release cannot reasonably be expected to ensure the safety 

of the community or any person, and— 

(I) the alien has been convicted of one or more 

aggravated felonies described in section 

101(a)(43)(A) or of one or more crimes identified by 

the Secretary by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or such crimes, for an aggregate 

term of imprisonment of at least five years; or 

(II) the alien has committed one or more 

crimes of violence 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. 

(v) 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. 

106 

(C) Pending a determination under subparagraph (B), 

so long as the Secretary has initiated the administrative review process no later than 30 days after the expiration of 

the removal period (including any extension of the removal 

period as provided in subsection (a)(1)(C)). 

(5) RELEASE ON CONDITIONS.—If it is determined that an 

alien should be released from detention, the Secretary in the exercise of discretion may impose conditions on release as provided in subsection (a)(3). 

(6) REDETENTION.—The Secretary 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 the alien fails to comply 

with the conditions of release or to cooperate in the alien’s removal from the United States, or if, upon reconsideration, the 

Secretary determines that the alien can be detained under paragraph (1). Paragraphs (6) through (8) of subsection (a) shall 

apply to any alien returned to custody pursuant to this paragraph, as if the removal period terminated on the day of the redetention. 

(7) CERTAIN ALIENS WHO EFFECTED ENTRY.—If an alien has 

effected an entry into the United States but has neither been 

lawfully admitted nor 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, the Secretary in the exercise 

of discretion may decide not to apply subsection (a)(8) and this 

subsection and may detain the alien without any limitations except those imposed by regulation. 

JUDICIAL REVIEW OF ORDERS OF REMOVAL

SEC. 242. (a) * * * 

* * * * * * * 

(b) REQUIREMENTS FOR REVIEW OF ORDERS OF REMOVAL.—With 

respect to review of an order of removal under subsection (a)(1), the 

following requirements apply: 

(1) * * * 

* * * * * * * 

(3) SERVICE.— 

(A) * * * 

* * * * * * * 

ø(C) ALIEN’S BRIEF.—The alien 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 

Attorney General, and the court may not extend these 

deadlines except upon motion for good cause shown. If an 

alien fails to file a brief within the time provided in this 

paragraph, the court shall dismiss the appeal unless a 

manifest injustice would result.¿ 

(C) ALIEN’S BRIEF.—The alien shall serve and file a 

brief in connection with a petition for judicial review not 

107 

later than 40 days after the date on which the administrative record is available. The court may not extend this 

deadline except upon motion for good cause shown. If an 

alien fails to file a brief within the time provided in this 

paragraph, the court shall dismiss the appeal unless a 

manifest injustice would result. 

(D) CERTIFICATE.— 

(i) After the alien has filed the alien’s brief, the petition for review shall be assigned to a single court of 

appeals judge. 

(ii) Unless that court of appeals judge or a circuit 

justice issues a certificate of reviewability, the petition 

for review shall be denied and the government shall 

not file a brief. 

(iii) A certificate of reviewability may issue under 

clause (ii) only if the alien has made a substantial 

showing that the petition for review is likely to be 

granted. 

(iv) The court of appeals judge or circuit justice 

shall complete all action on such certificate, including 

rendering judgment, not later than 60 days after the 

date on which the judge or circuit justice was assigned 

the petition for review, unless an extension is granted 

under clause (v). 

(v) The judge or circuit justice may grant, on the 

judge’s or justice’s own motion or on the motion of a 

party, an extension of the 60-day period described in 

clause (iv) if— 

(I) all parties to the proceeding agree to such 

extension; or 

(II) such extension is for good cause shown or 

in the interests of justice, and the judge or circuit 

justice states the grounds for the extension with 

specificity. 

(vi) If no certificate of reviewability is issued before 

the end of the period described in clause (iv), including 

any extension under clause (v), the petition for review 

shall be deemed denied, any stay or injunction on petitioner’s removal shall be dissolved without further action by the court or the government, and the alien may 

be removed. 

(vii) If a certificate of reviewability is issued under 

clause (ii), the Government shall be afforded an opportunity to file a brief in response to the alien’s brief. The 

alien may serve and file a reply brief not later than 14 

days after service of the Government’s brief, and the 

court may not extend this deadline except upon motion 

for good cause shown. 

(E) NO FURTHER REVIEW OF THE COURT OF APPEALS

JUDGE’S DECISION NOT TO ISSUE A CERTIFICATE OF

REVIEWABILITY.—The single court of appeals judge’s decision not to issue a certificate of reviewability, or the denial 

of a petition under subparagraph (D)(vi), shall be the final 

decision for the court of appeals and shall not be reconsidVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00111 Fmt 6659 Sfmt 6603 E:\HR\OC\HR345P1.XXX HR345P1
108 

ered, reviewed, or reversed by the court of appeals through 

any mechanism or procedure. 

* * * * * * * 

(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER SECTION

241(a)(5).— 

(1) IN GENERAL.—Notwithstanding any other provision of 

law (statutory or nonstatutory), including section 2241 of title 

28, United States Code, or any other habeas corpus provision, 

sections 1361 and 1651 of such title, or subsection (a)(2)(D) of 

this section, no court shall have jurisdiction to review any cause 

or claim arising from or relating to any reinstatement under 

section 241(a)(5) (including any challenge to the reinstated 

order), except as provided in paragraph (2) or (3). 

(2) CHALLENGES IN COURT OF APPEALS FOR DISTRICT OF CO- LUMBIA TO VALIDITY OF THE SYSTEM, ITS IMPLEMENTATION, AND

RELATED INDIVIDUAL DETERMINATIONS.— (A) IN GENERAL.—Judicial review of determinations 

under section 241(a)(5) and its implementation is available 

in an action instituted in the United States Court of Appeals for the District of Columbia Circuit, but shall be limited, except as provided in subparagraph (B), to the following determinations: 

(i) Whether such section, or any regulation issued 

to implement such section, is constitutional. 

(ii) Whether such a regulation, or a written policy 

directive, written policy guideline, or written procedure 

issued by or under the authority of the Attorney General or the Secretary of Homeland Security to implement such section, is not consistent with applicable 

provisions of this Act or is otherwise in violation of a 

statute or the Constitution. 

(B) RELATED INDIVIDUAL DETERMINATIONS.—If a person raises an action under subparagraph (A), the person 

may also raise in the same action the following issues: 

(i) Whether the petitioner is an alien. 

(ii) Whether the petitioner was previously ordered 

removed or deported, or excluded. 

(iii) Whether the petitioner has since illegally entered the United States. 

(C) DEADLINES FOR BRINGING ACTIONS.—Any action instituted under this paragraph must be filed no later than 

60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) 

of subparagraph (A) is first implemented. 

(3) INDIVIDUAL DETERMINATIONS UNDER SECTION 242(a).— 

Judicial review of determinations under section 241(a)(5) is 

available in an action under subsection (a) of this section, but 

shall be limited to determinations of— 

(A) whether the petitioner is an alien; 

(B) whether the petitioner was previously ordered removed, deported, or excluded; and 

(C) whether the petitioner has since illegally entered 

the United States. 

(4) SINGLE ACTION.—A person who files an action under 

paragraph (2) may not file a separate action under paragraph 

109 

(3). A person who files an action under paragraph (3) may not 

file an action under paragraph (2). 

PENALTIES RELATED TO REMOVAL

SEC. 243. (a) PENALTY FOR FAILURE TO DEPART.— 

(1) IN GENERAL.—Any alien against whom a final order of 

removal is outstanding by reason of being a member of any of 

the classes described in section 237(a) or 212(a), who— 

(A) * * * 

* * * * * * * 

shall be fined under title 18, United States Code, or øimprisoned not more than four years¿ imprisoned for not less than six 

months or more than five years (or 10 years if the alien is a 

member of any of the classes described in paragraph (1)(E), (2), 

(3), or (4) of section 237(a)), or both. 

* * * * * * * 

(b) WILLFUL FAILURE TO COMPLY WITH TERMS OF RELEASE

UNDER SUPERVISION.—An alien who shall willfully fail to comply 

with regulations or requirements issued pursuant to section 

241(a)(3) or knowingly give false information in response to an inquiry under such section shall be fined ønot more than $1,000¿ 

under title 18, United States Code or imprisoned øfor not more than 

one year¿ for not less than six months or more than five years (or 

10 years if the alien is a member of any class described in paragraph (1)(E), (2), (3), or (4) of section 237(a), or both. 

* * * * * * * 

ø(d) DISCONTINUING GRANTING VISAS TO NATIONALS OF COUNTRY DENYING OR DELAYING ACCEPTING ALIEN.—On being notified 

by the Attorney General that the government of a foreign country 

denies or unreasonably delays accepting an alien who is a citizen, 

subject, national, or resident of that country after the Attorney 

General asks whether the government will accept the alien under 

this section, the Secretary of State shall order consular officers in 

that foreign country to discontinue granting immigrant visas or 

nonimmigrant visas, or both, to citizens, subjects, nationals, and 

residents of that country until the Attorney General notifies the 

Secretary that the country has accepted the alien.¿ 

(d) DENIAL OF ADMISSION TO NATIONALS OF COUNTRY DENYING

OR DELAYING ACCEPTING ALIEN.—Whenever the Secretary of Homeland Security determines that the government of a foreign country 

has denied or unreasonably delayed accepting an alien who is a citizen, subject, national, or resident of that country after the alien has 

been ordered removed, the Secretary, after consultation with the 

Secretary of State, may deny admission to any citizen, subject, national, or resident of that country until the country accepts the alien 

who was ordered removed. 

TEMPORARY PROTECTED STATUS

SEC. 244. (a) * * * 

* * * * * * * 

(c) ALIENS ELIGIBLE FOR TEMPORARY PROTECTED STATUS.— 

(1) * * * 

110 

(2) ELIGIBILITY STANDARDS.— (A) * * * 

* * * * * * * 

(C) LIMITATION ON JUDICIAL REVIEW.—There shall be 

no judicial review of any finding under subparagraph (B) 

that an alien is in described in section 208(b)(2)(A)(vi). 

* * * * * * * 

RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF

CERTAIN ALIENS WHO ENTERED THE UNITED STATES PRIOR TO JULY

1, 1924 OR JANUARY 1, 1972 

SEC. 249. A record of lawful admission for permanent residence 

may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as 

of the date of the approval of his application or, if entry occurred 

prior to July 1, 1924, as of the date of such entry, if no such record 

is otherwise available and such alien shall satisfy the Attorney 

General that he is not øinadmissible under¿ described in section 

212(a)(3)(E) or under section 212(a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of 

the narcotic laws or smugglers of aliens, and he establishes that 

he— 

(a) * * * 

* * * * * * * 

(d) is not ineligible to citizenship and is not ødeportable 

under¿ described in section 237(a)(4)(B). 

* * * * * * * 

øBRINGING IN AND HARBORING CERTAIN ALIENS

øSEC. 274. (a) CRIMINAL PENALTIES.—(1)(A) Any person who— 

ø(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of 

entry or place other than as designated by the Commissioner, 

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 such alien; 

ø(ii) knowing or in reckless disregard of the fact that an 

alien has come to, entered, or remains in the United States in 

violation of law, transports, or moves or attempts to transport 

or move such alien within the United States by means of 

transportation or otherwise, in furtherance of such violation of 

law; 

ø(iii) knowing or in reckless disregard of the fact that an 

alien has come to, entered, or remains in the United States in 

violation of law, conceals, harbors, or shields from detection, or 

attempts to conceal, harbor, or shield from detection, such 

alien in any place, including any building or any means of 

transportation; 

ø(iv) encourages or induces an alien to come to, enter, or 

reside in the United States, knowing or in reckless disregard 

111 

of the fact that such coming to, entry, or residence is or will 

be in violation of law; or 

ø(v)(I) engages in any conspiracy to commit any of the preceding acts, or 

ø(II) aids or abets the commission of any of the preceding 

acts, 

shall be punished as provided in subparagraph (B). 

ø(B) A person who violates subparagraph (A) shall, for each 

alien in respect to whom such a violation occurs— 

ø(i) in the case of a violation of subparagraph (A)(i) or 

(v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), 

or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under 

title 18, United States Code, imprisoned not more than 10 

years, or both; 

ø(ii) in the case of a violation of subparagraph (A) (ii), (iii), 

(iv), or (v)(II) be fined under title 18, United States Code, imprisoned not more than 5 years, or both; 

ø(iii) in the case of a violation of subparagraph (A) (i), (ii), 

(iii), (iv), or (v) during and in relation to which the person 

causes serious bodily injury (as defined in section 1365 of title 

18, United States Code) to, or places in jeopardy the life of, any 

person, be fined under title 18, United States Code, imprisoned 

not more than 20 years, or both; and 

ø(iv) in the case of a violation of subparagraph (A) (i), (ii), 

(iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, 

fined under title 18, United States Code, or both. 

ø(2) Any person who, knowing or in reckless disregard of the 

fact that an alien has not received prior official authorization to 

come to, enter, or reside in the United States, brings to or attempts 

to bring to the United States in any manner whatsoever, such 

alien, regardless of any official action which may later be taken 

with respect to such alien shall, for each alien in respect to whom 

a violation of this paragraph occurs— 

ø(A) be fined in accordance with title 18, United States 

Code, or imprisoned not more than one year, or both; or 

ø(B) in the case of— 

ø(i) an offense committed with the intent or with reason to believe that the alien unlawfully brought into the 

United States will commit an offense against the United 

States or any State punishable by imprisonment for more 

than 1 year, 

ø(ii) an offense done for the purpose of commercial advantage or private financial gain, or 

ø(iii) an offense in which the alien is not upon arrival 

immediately brought and presented to an appropriate immigration officer at a designated port of entry, 

be fined under title 18, United States Code, and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or 

second violation of subparagraph (B)(i) or (B)(ii), not less than 

3 nor more than 10 years, and for any other violation, not less 

than 5 nor more than 15 years. 

112 

ø(3)(A) Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual 

knowledge that the individuals are aliens described in subparagraph (B) shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both. 

ø(B) An alien described in this subparagraph is an alien who— 

ø(i) is an unauthorized alien (as defined in section 

274A(h)(3)), and 

ø(ii) has been brought into the United States in violation 

of this subsection. 

ø(4) In the case of a person who has brought aliens into the 

United States in violation of this subsection, the sentence otherwise provided for may be increased by up to 10 years if— 

ø(A) the offense was part of an ongoing commercial organization or enterprise; 

ø(B) aliens were transported in groups of 10 or more; and 

ø(C)(i) aliens were transported in a manner that endangered their lives; or 

ø(ii) the aliens presented a life-threatening health risk to 

people in the United States. 

ø(b) SEIZURE AND FORFEITURE.— ø(1) IN GENERAL.—Any conveyance, including any vessel, 

vehicle, or aircraft, that has been or is being used in the commission of a violation of subsection (a), the gross proceeds of 

such violation, and any property traceable to such conveyance 

or proceeds, shall be seized and subject to forfeiture. 

ø(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, 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 Attorney General. 

ø(3) PRIMA FACIE EVIDENCE IN DETERMINATIONS OF VIOLA- TIONS.—In determining whether a violation of subsection (a) 

has occurred, any of the following shall be prima facie evidence 

that an alien involved in the alleged violation had not received 

prior official authorization to come to, enter, or reside in the 

United States or that such alien had come to, entered, or remained in the United States in violation of law: 

ø(A) Records of any judicial or administrative proceeding in which that alien’s status was an issue and in 

which it was determined that the alien had not received 

prior official authorization to come to, enter, or reside in 

the United States or that such alien had come to, entered, 

or remained in the United States in violation of law. 

ø(B) Official records of the Service or of the Department of State showing that the alien had not received 

prior official authorization to come to, enter, or reside in 

the United States or that such alien had come to, entered, 

or remained in the United States in violation of law. 

ø(C) Testimony, by an immigration officer having personal knowledge of the facts concerning that alien’s status, 

that the alien had not received prior official authorization 

113 

to come to, enter, or reside in the United States or that 

such alien had come to, entered, or remained in the United 

States in violation of law. 

ø(c) No officer or person shall have authority to make any arrest for a violation of any provision of this section except officers 

and employees of the Service designated by the Attorney General, 

either individually or as a member of a class, and all other officers 

whose duty it is to enforce criminal laws. 

ø(d) 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 unable to testify, may be admitted into evidence in an action 

brought for that violation if the witness was available for cross examination and the deposition otherwise complies with the Federal 

Rules of Evidence. 

ø(e) OUTREACH PROGRAM.—The Secretary of Homeland Security, in consultation with the Attorney General and the Secretary 

of State, as appropriate, shall develop and implement an outreach 

program to educate the public in the United States and abroad 

about the penalties for bringing in and harboring aliens in violation 

of this section.¿ 

ALIEN SMUGGLING AND RELATED OFFENSES

SEC. 274. (a) CRIMINAL OFFENSES AND PENALTIES.— 

(1) PROHIBITED ACTIVITIES.—Whoever— 

(A) assists, encourages, directs, or induces a person to 

come to or enter the United States, or to attempt to come 

to or enter the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks 

lawful authority to come to or enter the United States; 

(B) assists, encourages, directs, or induces a person to 

come to or enter 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, regardless of whether such person has official permission or lawful authority 

to be in the United States, knowing or in reckless disregard 

of the fact that such person is an alien; 

(C) assists, encourages, directs, or induces a person to 

reside in or remain in the United States, or to attempt to 

reside in or remain 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 or remain in the 

United States; 

(D) 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, where the transportation or movement 

will aid or further in any manner the person’s illegal entry 

into or illegal presence in the United States; 

(E) 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; 

114 

(F) 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 one country to another or 

on the high seas, under circumstances in which the person 

is in fact seeking to enter the United States without official 

permission or lawful authority; or 

(G) conspires or attempts to commit any of the preceding acts, 

shall be punished as provided in paragraph (2), regardless of 

any official action which may later be taken with respect to 

such alien. 

(2) CRIMINAL PENALTIES.—A person who violates the provisions of paragraph (1) shall— 

(A) except as provided in subparagraphs (D) through 

(H), in the case where the offense was not committed for 

commercial advantage, profit, or private financial gain, be 

imprisoned for not more than 5 years, or fined under title 

18, United States Code, or both; 

(B) except as provided in subparagraphs (C) through 

(H), where the offense was committed for commercial advantage, profit, or private financial gain— 

(i) in the case of a first violation of this subparagraph, be imprisoned for not more than 20 years, or 

fined under title 18, United States Code, or both; and 

(ii) for any subsequent violation, be imprisoned for 

not less than 3 years nor more than 20 years, or fined 

under title 18, United States Code, or both; 

(C) in the case where the offense was committed for 

commercial advantage, profit, or private financial gain and 

involved 2 or more aliens other than the offender, be imprisoned for not less than 3 nor more than 20 years, or 

fined under title 18, United States Code, or both; 

(D) in the case where the offense furthers or aids the 

commission of any other offense against the United States 

or any State, which offense is punishable by imprisonment 

for more than 1 year, be imprisoned for not less than 5 nor 

more than 20 years, or fined under title 18, United States 

Code, or both; 

(E) in the case where any participant in the offense created a substantial risk of death or serious bodily injury to 

another person, including— 

(i) transporting a person in an engine compartment, storage compartment, or other confined space; 

(ii) transporting a person at an excessive speed or 

in excess of the rated capacity of the means of transportation; or 

(iii) transporting or harboring a person in a 

crowded, dangerous, or inhumane manner, 

be imprisoned not less than 5 nor more than 20 years, or 

fined under title 18, United States Code, or both; 

(F) in the case where the offense caused serious bodily 

injury (as defined in section 1365 of title 18, United States 

Code, including any conduct that would violate sections 

2241 or 2242 of title 18, United States Code, if the conduct 

115 

occurred in the special maritime and territorial jurisdiction 

of the United States) to any person, be imprisoned for not 

less than 7 nor more than 30 years, or fined under title 18, 

United States Code, or both; 

(G) in the case where the offense involved an alien who 

the offender knew or had reason to believe was an alien— 

(i) engaged in terrorist activity (as defined in section 212(a)(3)(B)); or 

(ii) intending to engage in such terrorist activity, 

be imprisoned for not less than 10 nor more than 30 years, 

or fined under title 18, United States Code, or both; and 

(H) in the case where the offense caused or resulted in 

the death of any person, be punished by death or imprisoned for not less than 10 years, or any term of years, or for 

life, or fined under title 18, United States Code, or both. 

(3) EXTRATERRITORIAL JURISDICTION.—There is 

extraterritorial Federal jurisdiction over the offenses described 

in this subsection. 

(b) EMPLOYMENT OF UNAUTHORIZED ALIENS.— 

(1) IN GENERAL.—Any person who, during any 12-month 

period, knowingly hires for employment at least 10 individuals 

with actual knowledge that the individuals are aliens described 

in paragraph (2), shall be fined under title 18, United States 

Code, imprisoned for not more than 5 years, or both. 

(2) ALIEN DESCRIBED.—A alien described in this paragraph 

is an alien who— 

(A) is an unauthorized alien (as defined in section 

274A(h)(3)); and 

(B) has been brought into the United States in violation of subsection (a). 

(c) SEIZURE AND FORFEITURE.— (1) IN GENERAL.—Any property, real or personal, that has 

been 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, 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. 

(d) AUTHORITY TO ARREST.—No officer or person shall have authority to make any arrests for a violation of any provision of this 

section except officers and employees designated by the Secretary of 

Homeland Security, either individually or as a member of a class, 

and all other officers whose duty it is to enforce criminal laws. 

(e) ADMISSIBILITY OF EVIDENCE.— (1) PRIMA FACIE EVIDENCE IN DETERMINATIONS OF VIOLA- TIONS.—Notwithstanding any provision of the Federal Rules of 

Evidence, in determining whether a violation of subsection (a) 

has occurred, any of the following shall be prima facie evidence 

that an alien involved in the violation lacks lawful authority to 

116 

come to, enter, reside, remain, or be in the United States or that 

such alien had come to, entered, resided, remained or been 

present in the United States in violation of law: 

(A) Any order, finding, or determination concerning the 

alien’s status or lack thereof made by a federal judge or administrative adjudicator (including an immigration judge 

or an immigration officer) during any judicial or administrative proceeding authorized under the immigration laws 

or regulations prescribed thereunder. 

(B) An official record of the Department of Homeland 

Security, Department of Justice, or the Department of State 

concerning the alien’s status or lack thereof. 

(C) Testimony by an immigration officer having personal knowledge of the facts concerning the alien’s status or 

lack thereof. 

(2) VIDEOTAPED 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 the witness was available for cross examination 

at the deposition and the deposition otherwise complies with the 

Federal Rules of Evidence. 

(f) DEFINITIONS.—For purposes of this section: 

(1) The term ‘‘lawful authority’’ means permission, authorization, or license that is expressly provided for in the immigration laws of the United States or the regulations prescribed 

thereunder. Such term does not include any such authority secured by fraud or otherwise obtained in violation of law, nor 

does it include authority that has been sought but not approved. 

No alien shall be deemed to have lawful authority to come to, 

enter, reside, remain, or be in the United States if such coming 

to, entry, residence, remaining, or presence was, is, or would be 

in violation of law. 

(2) 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 or to 

which the alien is traveling or moving. 

UNLAWFUL EMPLOYMENT OF ALIENS

SEC. 274A. (a) MAKING EMPLOYMENT OF UNAUTHORIZED

ALIENS UNLAWFUL.— 

(1) IN GENERAL.—It is unlawful for a person or other entity— 

(A) to hire, or to recruit or refer øfor a fee¿, for employment in the United States an alien knowing the alien 

is an unauthorized alien (as defined in subsection (h)(3)) 

with respect to such employment, or 

ø(B)(i) to hire for employment in the United States an 

individual without complying with the requirements of 

subsection (b) or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 3 of the Migrant and Seasonal Agricultural Worker Protection Act), to hire, or to reVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00120 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
117 

cruit or refer for a fee, for employment in the United 

States an individual without complying with the requirements of subsection (b).¿ 

(B) to hire, continue to employ, or to recruit or refer for 

employment in the United States an individual without 

complying with the requirements of subsection (b). 

(2) CONTINUING EMPLOYMENT.—It is unlawful for a person 

or other entity, øafter hiring an alien for employment in accordance with paragraph (1),¿ after complying with paragraph 

(1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment. 

(3) DEFENSE.—(A) A person or entity that establishes that 

it has complied in good faith with the requirements of subsection (b) with respect to the øhiring,¿ hiring, employing, recruiting, or referral for employment of an alien in the United 

States has established an affirmative defense that the person 

or entity has not violated paragraph (1)(A) with respect to such 

øhiring,¿ hiring, employing, recruiting, or referral. 

(B) FAILURE TO SEEK AND OBTAIN VERIFICATION.—In the 

case of a person or entity in the United States that hires, or continues to employ, an individual, or recruits or refers an individual for employment, the following requirements apply: 

(i) FAILURE TO SEEK VERIFICATION.— 

(I) IN GENERAL.—If the person or entity has not 

made an inquiry, under the mechanism established 

under subsection (b)(7), seeking verification of the identity and work eligibility of the individual, by not later 

than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring, employing, the date specified in subsection 

(b)(8)(B) for previously hired individuals, or before the 

recruiting or referring commences, the defense under 

subparagraph (A) shall not be considered to apply with 

respect to any employment, except as provided in subclause (II). 

(II) SPECIAL RULE FOR FAILURE OF VERIFICATION

MECHANISM.—If such a person or entity in good faith 

attempts to make an inquiry in order to qualify for the 

defense under subparagraph (A) and the verification 

mechanism has registered that not all inquiries were 

responded to during the relevant time, the person or 

entity can make an inquiry until the end of the first 

subsequent working day in which the verification 

mechanism registers no nonresponses and qualify for 

such defense. 

(ii) FAILURE TO OBTAIN VERIFICATION.—If the person or 

entity has made the inquiry described in clause (i)(I) but 

has not received an appropriate verification of such identity 

and work eligibility under such mechanism within the time 

period specified under subsection (b)(7)(B) after the time the 

verification inquiry was received, the defense under subparagraph (A) shall not be considered to apply with respect 

to any employment after the end of such time period. 

118 

(b) EMPLOYMENT VERIFICATION SYSTEM.—The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) are, in the 

case of a person or other entity hiring, recruiting, or referring an 

individual for employment in the United States, the requirements 

specified in the following three paragraphs: 

(1) ATTESTATION AFTER EXAMINATION OF DOCUMENTA- TION.— ø(A) IN GENERAL.—The person or entity must attest, 

under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it 

has verified that the individual is not an unauthorized 

alien by examining— 

ø(i) a document described in subparagraph (B), or 

ø(ii) a document described in subparagraph (C) 

and a document described in subparagraph (D). 

A person or entity has complied with the requirement of 

this paragraph with respect to examination of a document 

if the document reasonably appears on its face to be genuine. If an individual provides a document or combination 

of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the 

first sentence of this paragraph, nothing in this paragraph 

shall be construed as requiring the person or entity to solicit the production of any other document or as requiring 

the individual to produce such another document.¿ 

(A) IN GENERAL.—The person or entity must attest, 

under penalty of perjury and on a form designated or established by the Secretary by regulation, that it has verified 

that the individual is not an unauthorized alien by— 

(i) obtaining from the individual the individual’s 

social security account number and recording the number on the form (if the individual claims to have been 

issued such a number), and, if the individual does not 

attest to United States citizenship under paragraph (2), 

obtaining such identification or authorization number 

established by the Department of Homeland Security 

for the alien as the Secretary of Homeland Security 

may specify, and recording such number on the form; 

and 

(ii)(I) examining a document described in subparagraph (B); or (II) examining a document described in 

subparagraph (C) and a document described in subparagraph (D). 

A person or entity has complied with the requirement of 

this paragraph with respect to examination of a document 

if the document reasonably appears on its face to be genuine, reasonably appears to pertain to the individual whose 

identity and work eligibility is being verified, and, if the 

document bears an expiration date, that expiration date 

has not elapsed. If an individual provides a document (or 

combination of documents) that reasonably appears on its 

face to be genuine, reasonably appears to pertain to the individual whose identity and work eligibility is being 

verified, and is sufficient to meet the first sentence of this 

paragraph, nothing in this paragraph shall be construed as 

119 

requiring the person or entity to solicit the production of 

any other document or as requiring the individual to 

produce another document. 

* * * * * * * 

(D) DOCUMENTS ESTABLISHING IDENTITY OF INDI- VIDUAL.—A document described in this subparagraph is an 

individual’s— 

(i) driver’s license or similar document issued for 

the purpose of identification by a State, if it contains 

a photograph of the individual øor such other personal 

identifying information relating to the individual as 

the Attorney General finds, by regulation, sufficient 

for purposes of this section¿; or 

(ii) in the case of individuals under 16 years of age 

or in a State which does not provide for issuance of an 

identification document (other than a driver’s license) 

referred to in clause (i), documentation of personal 

identity of such other type as the Attorney General 

finds, by regulation, provides a reliable means of identification and that contains a photograph of the individual. 

* * * * * * * 

(2) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZA- TION.—The individual must attest, under penalty of perjury on 

the form designated or established for purposes of paragraph 

(1), 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 Attorney 

General to be hired, recruited, or referred for such employment. The individual must also provide that individual’s social 

security account number (if the individual claims to have been 

issued such a number), and, if the individual does not attest to 

United States citizenship under this paragraph, such identification or authorization number established by the Department of 

Homeland Security for the alien as the Secretary may specify. 

ø(3) RETENTION OF VERIFICATION FORM.—After completion 

of such form in accordance with paragraphs (1) and (2), the 

person or entity must retain the form and make it available for 

inspection by officers of the Service, 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— 

ø(A) in the case of the recruiting or referral for a fee 

(without hiring) of an individual, three years after the date 

of the recruiting or referral, and 

ø(B) in the case of the hiring of an individual— 

ø(i) three years after the date of such hiring, or 

ø(ii) one year after the date the individual’s employment is terminated, 

whichever is later.¿ 

(3) RETENTION OF VERIFICATION FORM AND VERIFICATION.— 

(A) IN GENERAL.—After completion of such form in accordance with paragraphs (1) and (2), the person or entity 

must— 

120 

(i) retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, 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 or the date 

of the completion of verification of a previously hired 

individual and ending— 

(I) in the case of the recruiting or referral of 

an individual, three years after the date of the recruiting or referral; 

(II) in the case of the hiring of an individual, 

the later of— 

(aa) three years after the date of such hiring; or 

(bb) one year after the date the individual’s employment is terminated; and 

(III) in the case of the verification of a previously hired individual, the later of— 

(aa) three years after the date of the completion of verification; or 

(bb) one year after the date the individual’s employment is terminated; 

(ii) make an inquiry, as provided in paragraph (7), 

using the verification system to seek verification of the 

identity and employment eligibility of an individual, by 

not later than the end of 3 working days (as specified 

by the Secretary of Homeland Security) after the date 

of the hiring or in the case of previously hired individuals, the date specified in subsection (b)(8)(B), or before 

the recruiting or referring commences; and 

(iii) may not commence recruitment or referral of 

the individual until the person or entity receives 

verification under subparagraph (B)(i) or (B)(iii). 

(B) VERIFICATION.— (i) VERIFICATION RECEIVED.—If the person or other 

entity receives an appropriate verification of an individual’s identity and work eligibility under the 

verification system within the time period specified, the 

person or entity shall record on the form an appropriate code that is provided under the system and that 

indicates a final verification of such identity and work 

eligibility of the individual. 

(ii) TENTATIVE NONVERIFICATION RECEIVED.—If the 

person or other entity receives a tentative 

nonverification of an individual’s identity or work eligibility under the verification system within the time 

period specified, the person or entity shall so inform 

the individual for whom the verification is sought. If 

the individual does not contest the nonverification 

within the time period specified, the nonverification 

shall be considered final. The person or entity shall 

then record on the form an appropriate code which has 

been provided under the system to indicate a tentative 

121 

nonverification. If the individual does contest the 

nonverification, the individual shall utilize the process 

for secondary verification provided under paragraph 

(7). The nonverification will remain tentative until a 

final verification or nonverification is provided by the 

verification system within the time period specified. In 

no case shall an employer terminate employment of an 

individual because of a failure of the individual to 

have identity and work eligibility confirmed under this 

section until a nonverification becomes final. Nothing 

in this clause shall apply to a termination of employment for any reason other than because of such a failure. 

(iii) FINAL VERIFICATION OR NONVERIFICATION RECEIVED.—If a final verification or nonverification is 

provided by the verification system regarding an individual, the person or entity shall record on the form an 

appropriate code that is provided under the system and 

that indicates a verification or nonverification of identity and work eligibility of the individual. 

(iv) EXTENSION OF TIME.—If the person or other 

entity in good faith attempts to make an inquiry during the time period specified and the verification system has registered that not all inquiries were received 

during such time, the person or entity may make an inquiry in the first subsequent working day in which the 

verification system registers that it has received all inquiries. If the verification system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the 

inquiry on that day for the previous sentence to apply 

to such an inquiry, and does not have to provide any 

additional proof concerning such inquiry. 

(v) CONSEQUENCES OF NONVERIFICATION.— 

(I) TERMINATION OR NOTIFICATION OF CONTIN- UED EMPLOYMENT.—If the person or other entity 

has received a final nonverification regarding an 

individual, the person or entity may terminate employment of the individual (or decline to recruit or 

refer the individual). If the person or entity does 

not terminate employment of the individual or proceeds to recruit or refer the individual, the person 

or entity shall notify the Secretary of Homeland 

Security of such fact through the verification system or in such other manner as the Secretary may 

specify. 

(II) FAILURE TO NOTIFY.—If the person or entity fails to provide notice with respect to an individual as required under subclause (I), the failure 

is deemed to constitute a violation of subsection 

(a)(1)(A) with respect to that individual. 

(vi) CONTINUED EMPLOYMENT AFTER FINAL

NONVERIFICATION.—If the person or other entity continues to employ (or to recruit or refer) an individual 

after receiving final nonverification, a rebuttable preVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00125 Fmt 6659 Sfmt 6603 E:\HR\OC\HR345P1.XXX HR345P1
122 

sumption is created that the person or entity has violated subsection (a)(1)(A). 

* * * * * * * 

(7) EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.— 

(A) IN GENERAL.—The Secretary of Homeland Security 

shall establish and administer a verification system 

through which the Secretary (or a designee of the Secretary, 

which may be a nongovernmental entity)— 

(i) responds to inquiries made by persons at any 

time through a toll-free telephone line and other tollfree electronic media concerning an individual’s identity and whether the individual is authorized to be employed; and 

(ii) maintains records of the inquiries that were 

made, of verifications provided (or not provided), and 

of the codes provided to inquirers as evidence of their 

compliance with their obligations under this section. 

(B) INITIAL RESPONSE.—The verification system shall 

provide verification or a tentative nonverification of an individual’s identity and employment eligibility within 3 

working days of the initial inquiry. If providing verification 

or tentative nonverification, the verification system shall 

provide an appropriate code indicating such verification or 

such nonverification. 

(C) SECONDARY VERIFICATION PROCESS IN CASE OF TENTATIVE NONVERIFICATION.—In cases of tentative 

nonverification, the Secretary shall specify, in consultation 

with the Commissioner of Social Security, an available secondary verification process to confirm the validity of information provided and to provide a final verification or 

nonverification within 10 working days after the date of the 

tentative nonverification. When final verification or 

nonverification is provided, the verification system shall 

provide an appropriate code indicating such verification or 

nonverification. 

(D) DESIGN AND OPERATION OF SYSTEM.—The 

verification system shall be designed and operated— 

(i) to maximize its reliability and ease of use by 

persons and other entities consistent with insulating 

and protecting the privacy and security of the underlying information; 

(ii) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such 

inquiries are not received; 

(iii) with appropriate administrative, technical, 

and physical safeguards to prevent unauthorized disclosure of personal information; and 

(iv) to have reasonable safeguards against the system’s resulting in unlawful discriminatory practices 

based on national origin or citizenship status, including— 

(I) the selective or unauthorized use of the system to verify eligibility; 

123 

(II) the use of the system prior to an offer of 

employment; or 

(III) the exclusion of certain individuals from 

consideration for employment as a result of a perceived likelihood that additional verification will 

be required, beyond what is required for most job 

applicants. 

(E) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL

SECURITY.—As part of the verification system, the Commissioner of Social Security, in consultation with the Secretary 

of Homeland Security (and any designee of the Secretary 

selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under subparagraphs (B) and 

(C), compares the name and social security account number 

provided in an inquiry against such information maintained by the Commissioner in order to validate (or not 

validate) the information provided regarding an individual 

whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and 

whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such verification or nonverification) except as provided for in this section or section 205(c)(2)(I) of 

the Social Security Act. 

(F) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND

SECURITY.—(i) As part of the verification system, the Secretary of Homeland Security (in consultation with any designee of the Secretary selected to establish and administer 

the verification system), shall establish a reliable, secure 

method, which, within the time periods specified under subparagraphs (B) and (C), compares the name and alien 

identification or authorization number which are provided 

in an inquiry against such information maintained by the 

Secretary in order to validate (or not validate) the information provided, the correspondence of the name and number, 

and whether the alien is authorized to be employed in the 

United States. 

(ii) When a single employer has submitted to the 

verification system pursuant to paragraph (3)(A) the identical social security account number in more than one instance, or when multiple employers have submitted to the 

verification system pursuant to such paragraph the identical social security account number, in a manner which indicates the possible fraudulent use of that number, the Secretary of Homeland Security shall conduct an investigation, 

within the time periods specified in subparagraphs (B) and 

(C), in order to ensure that no fraudulent use of a social security account number has taken place. If the Secretary has 

selected a designee to establish and administer the 

verification system, the designee shall notify the Secretary 

when a single employer has submitted to the verification 

system pursuant to paragraph (3)(A) the identical social security account number in more than one instance, or when 

124 

multiple employers have submitted to the verification system pursuant to such paragraph the identical social security account number, in a manner which indicates the possible fraudulent use of that number. The designee shall 

also provide the Secretary with all pertinent information, 

including the name and address of the employer or employers who submitted the relevant social security account number, the relevant social security account number submitted 

by the employer or employers, and the relevant name and 

date of birth of the employee submitted by the employer or 

employers. 

(G) UPDATING INFORMATION.—The Commissioner of 

Social Security and the Secretary of Homeland Security 

shall update their information in a manner that promotes 

the maximum accuracy and shall provide a process for the 

prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in subparagraph (C). 

(H) LIMITATION ON USE OF THE VERIFICATION SYSTEM

AND ANY RELATED SYSTEMS.— 

(i) IN GENERAL.—Notwithstanding any other provision of law, nothing in this paragraph shall be construed to permit or allow any department, bureau, or 

other agency of the United States Government to utilize 

any information, data base, or other records assembled 

under this paragraph for any other purpose other than 

as provided for. 

(ii) NO NATIONAL IDENTIFICATION CARD.—Nothing 

in this paragraph shall be construed to authorize, directly or indirectly, the issuance or use of national 

identification cards or the establishment of a national 

identification card. 

(I) FEDERAL TORT CLAIMS ACT.—If an individual alleges that the individual would not have been dismissed 

from a job but for an error of the verification mechanism, 

the individual may seek compensation only through the 

mechanism of the Federal Tort Claims Act, and injunctive 

relief to correct such error. No class action may be brought 

under this subparagraph. 

(J) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN

ON THE BASIS OF INFORMATION.—No person or entity shall 

be civilly or criminally liable for any action taken in good 

faith reliance on information provided through the employment eligibility verification mechanism established under 

this paragraph. 

(8) USE OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM

FOR PREVIOUSLY HIRED INDIVIDUALS.— 

(A) ON A VOLUNTARY BASIS.—Beginning on the date 

that is 2 years after the date of the enactment of the Border 

Protection, Antiterrorism, and Illegal Immigration Control 

Act of 2005 and until the date specified in subparagraph 

(B)(iii), a person or entity may make an inquiry, as provided in paragraph (7), using the verification system to 

seek verification of the identity and employment eligibility 

125 

of any individual employed by the person or entity, as long 

as it is done on a nondiscriminatory basis. 

(B) ON A MANDATORY BASIS.— 

(i) A person or entity described in clause (ii) must 

make an inquiry as provided in paragraph (7), using 

the verification system to seek verification of the identity and employment eligibility of all individuals employed by the person or entity who have not been previously subject to an inquiry by the person or entity by 

the date three years after the date of enactment of the 

Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. 

(ii) A person or entity is described in this clause if 

it is a Federal, State, or local governmental body (including the Armed Forces of the United States), or if 

it employs individuals working in a location that is a 

Federal, State, or local government building, a military 

base, a nuclear energy site, a weapon site, an airport, 

or that contains critical infrastructure (as defined in 

section 1016(e) of the Critical Infrastructure Protection 

Act of 2001 (42 U.S.C. 5195c(e))), but only to the extent 

of such individuals. 

(iii) All persons and entities other than those described in clause (ii) must make an inquiry, as provided in paragraph (7), using the verification system to 

seek verification of the identity and employment eligibility of all individuals employed by the person or entity who have not been previously subject to an inquiry 

by the person or entity by the date six years after the 

date of enactment of the Border Protection, 

Antiterrorism, and Illegal Immigration Control Act of 

2005. 

* * * * * * * 

ø(d) EVALUATION AND CHANGES IN EMPLOYMENT VERIFICATION

SYSTEM.— 

ø(1) PRESIDENTIAL MONITORING AND IMPROVEMENTS IN SYSTEM.— 

ø(A) MONITORING.—The President shall provide for the 

monitoring and evaluation of the degree to which the employment verification system established under subsection 

(b) provides a secure system to determine employment eligibility in the United States and shall examine the suitability of existing Federal and State identification systems 

for use for this purpose. 

ø(B) IMPROVEMENTS TO ESTABLISH SECURE SYSTEM.— 

To the extent that the system established under subsection 

(b) is found not to be a secure system to determine employment eligibility in the United States, the President shall, 

subject to paragraph (3) and taking into account the results of any demonstration projects conducted under paragraph (4), implement such changes in (including additions 

to) the requirements of subsection (b) as may be necessary 

to establish a secure system to determine employment eligibility in the United States. Such changes in the system 

126 

may be implemented only if the changes conform to the requirements of paragraph (2). 

ø(2) RESTRICTIONS ON CHANGES IN SYSTEM.—Any change 

the President proposes to implement under paragraph (1) in 

the verification system must be designed in a manner so the 

verification system, as so changed, meets the following requirements: 

ø(A) RELIABLE DETERMINATION OF IDENTITY.—The system must be capable of reliably determining whether— 

ø(i) a person with the identity claimed by an employee or prospective employee is eligible to work, and 

ø(ii) the employee or prospective employee is 

claiming the identity of another individual. 

ø(B) USING OF COUNTERFEIT-RESISTANT DOCUMENTS.— 

If the system requires that a document be presented to or 

examined by an employer, the document must be in a form 

which is resistant to counterfeiting and tampering. 

ø(C) LIMITED USE OF SYSTEM.—Any personal information utilized by the system may not be made available to 

Government agencies, employers, and other persons except 

to the extent necessary to verify that an individual is not 

an unauthorized alien. 

ø(D) PRIVACY OF INFORMATION.—The system must protect the privacy and security of personal information and 

identifiers utilized in the system. 

ø(E) LIMITED DENIAL OF VERIFICATION.—A verification 

that an employee or prospective employee is eligible to be 

employed in the United States may not be withheld or revoked under the system for any reason other than that the 

employee or prospective employee is an unauthorized 

alien. 

ø(F) LIMITED USE FOR LAW ENFORCEMENT PURPOSES.— 

The system may not be used for law enforcement purposes, 

other than for enforcement of this Act or sections 1001, 

1028, 1546, and 1621 of title 18, United States Code. 

ø(G) RESTRICTION ON USE OF NEW DOCUMENTS.—If the 

system requires individuals to present a new card or other 

document (designed specifically for use for this purpose) at 

the time of hiring, recruitment, or referral, then such document may not be required to be presented for any purpose 

other than under this Act (or enforcement of sections 1001, 

1028, 1546, and 1621 of title 18, United States Code) nor 

to be carried on one’s person. 

ø(3) NOTICE TO CONGRESS BEFORE IMPLEMENTING

CHANGES.— 

ø(A) IN GENERAL.—The President may not implement 

any change under paragraph (1) unless at least— 

ø(i) 60 days, 

ø(ii) one year, in the case of a major change described in subparagraph (D)(iii), or 

ø(iii) two years, in the case of a major change described in clause (i) or (ii) of subparagraph (D), 

before the date of implementation of the change, the President has prepared and transmitted to the Committee on 

the Judiciary of the House of Representatives and to the 

127 

Committee on the Judiciary of the Senate a written report 

setting forth the proposed change. If the President proposes to make any change regarding social security account number cards, the President shall transmit to the 

Committee on Ways and Means of the House of Representatives and to the Committee on Finance of the Senate a 

written report setting forth the proposed change. The 

President promptly shall cause to have printed in the Federal Register the substance of any major change (described 

in subparagraph (D)) proposed and reported to Congress. 

ø(B) CONTENTS OF REPORT.—In any report under subparagraph (A) the President shall include recommendations for the establishment of civil and criminal sanctions 

for unauthorized use or disclosure of the information or 

identifiers contained in such system. 

ø(C) CONGRESSIONAL REVIEW OF MAJOR CHANGES.— 

ø(i) HEARINGS AND REVIEW.—The Committees on 

the Judiciary of the House of Representatives and of 

the Senate shall cause to have printed in the Congressional Record the substance of any major change described in subparagraph (D), shall hold hearings respecting the feasibility and desirability of implementing such a change, and, within the two year period before implementation, shall report to their respective Houses findings on whether or not such a 

change should be implemented. 

ø(ii) CONGRESSIONAL ACTION.—No major change 

may be implemented unless the Congress specifically 

provides, in an appropriations or other Act, for funds 

for implementation of the change. 

ø(D) MAJOR CHANGES DEFINED.—As used in this paragraph, the term ‘‘major change’’ means a change which 

would— 

ø(i) require an individual to present a new card or 

other document (designed specifically for use for this 

purpose) at the time of hiring, recruitment, or referral, 

ø(ii) provide for a telephone verification system 

under which an employer, recruiter, or referrer must 

transmit to a Federal official information concerning 

the immigration status of prospective employees and 

the official transmits to the person, and the person 

must record, a verification code, or 

ø(iii) require any change in any card used for accounting purposes under the Social Security Act, including any change requiring that the only social security account number cards which may be presented in 

order to comply with subsection (b)(1)(C)(i) are such 

cards as are in a counterfeit-resistant form consistent 

with the second sentence of section 205(c)(2)(D) of the 

Social Security Act. 

ø(E) GENERAL REVENUE FUNDING OF SOCIAL SECURITY

CARD CHANGES.—Any costs incurred in developing and implementing any change described in subparagraph (D)(iii) 

for purposes of this subsection shall not be paid for out of 

any trust fund established under the Social Security Act. 

128 

ø(4) DEMONSTRATION PROJECTS.— ø(A) AUTHORITY.—The President may undertake demonstration projects (consistent with paragraph (2)) of different changes in the requirements of subsection (b). No 

such project may extend over a period of longer than five 

years. 

ø(B) REPORTS ON PROJECTS.—The President shall report to the Congress on the results of demonstration 

projects conducted under this paragraph.¿ 

(e) COMPLIANCE.— (1) * * * 

* * * * * * * 

(4) CEASE AND DESIST ORDER WITH CIVIL MONEY PENALTY

FOR HIRING, RECRUITING, AND REFERRAL VIOLATIONS.—With respect to a violation of subsection (a)(1)(A) or (a)(2), the order 

under this subsection— 

(A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an 

amount, subject to paragraph (10), of— 

(i) ønot less than $250 and not more than $2,000¿ 

not less than $5,000 for each unauthorized alien with 

respect to whom a violation of either such subsection 

occurred, 

(ii) ønot less than $2,000 and not more than 

$5,000¿ not less than $10,000 for each such alien in 

the case of a person or entity previously subject to one 

order under this paragraph, or 

(iii) ønot less than $3,000 and not more than 

$10,000¿ not less than $25,000 for each such alien in 

the case of a person or entity previously subject to 

more than one order under this paragraph; and 

ø(B) may require the person or entity— 

ø(i) to comply with the requirements of subsection 

(b) (or subsection (d) if applicable) with respect to individuals hired (or recruited or referred for employment 

for a fee) during a period of up to three years, and 

ø(ii) to take such other remedial action as is appropriate.¿ 

(B) may require the person or entity to take such other 

remedial action as is appropriate. 

* * * * * * * 

(5) ORDER FOR CIVIL MONEY PENALTY FOR PAPERWORK VIOLATIONS.—With respect to a violation of subsection (a)(1)(B), 

the order under this subsection shall require the person or entity to pay a civil penalty in an amount, subject to paragraph 

(10), of not less than ø$100¿ $1,000 and not more than 

ø$1,000¿ $25,000 for each individual with respect to whom 

such violation occurred. In determining the amount of the penalty, due consideration shall be given to øthe size of the business of the employer being charged, the good faith of the employer¿ the good faith of the employer being charged, the seriousness of the violation, whether or not the individual was an 

unauthorized alien, and the history of previous violations. Failure by a person or entity to utilize the employment eligibility 

129 

verification system as required by law, or providing information 

to the system that the person or entity knows or reasonably believes to be false, shall be treated as a violation of subsection 

(a)(1)(A). 

* * * * * * * 

(10) MITIGATION OF CIVIL MONEY PENALTIES FOR SMALLER

EMPLOYERS.—In the case of imposition of a civil penalty under 

paragraph (4)(A) with respect to a violation of subsection 

(a)(1)(A) or (a)(2) for hiring or continuation of employment by 

an employer and in the case of imposition of a civil penalty 

under paragraph (5) for a violation of subsection (a)(1)(B) for 

hiring by an employer, the dollar amounts otherwise specified 

in the respective paragraph shall be reduced as follows: 

(A) In the case of an employer with an average of fewer 

than 26 full-time equivalent employees (as defined by the 

Secretary of Homeland Security), the amounts shall be reduced by 60 percent. 

(B) In the case of an employer with an average of at 

least 26, but fewer than 101, full-time equivalent employees 

(as so defined), the amounts shall be reduced by 40 percent. 

(C) In the case of an employer with an average of at 

least 101, but fewer than 251, full-time equivalent employees (as so defined), the amounts shall be reduced by 20 percent. 

The last sentence of paragraph (4) shall apply under this paragraph in the same manner as it applies under such paragraph. 

(f) CRIMINAL PENALTIES AND INJUNCTIONS FOR PATTERN OR

PRACTICE VIOLATIONS.— ø(1) CRIMINAL PENALTY.—Any person or entity which engages in a pattern or practice of violations of subsection 

(a)(1)(A) or (a)(2) shall be fined not more than $3,000 for each 

unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire 

pattern or practice, or both, notwithstanding the provisions of 

any other Federal law relating to fine levels.¿ 

(1) CRIMINAL PENALTY.—Any person or entity which engages in a pattern or practice of violations of subsection (a)(1) 

or (2) shall be fined not more than $50,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than one year, or both, notwithstanding the 

provisions of any other Federal law relating to fine levels. 

(2) ENJOINING OF PATTERN OR PRACTICE VIOLATIONS.— 

Whenever the øAttorney General¿ Secretary of Homeland Security has reasonable cause to believe that a person or entity 

is engaged in a pattern or practice of employment, recruitment, 

or referral in violation of paragraph (1)(A) or (2) of subsection 

(a), the øAttorney General¿ Secretary of Homeland Security 

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 person or entity, as the øAttorney General¿ Secretary of 

Homeland Security deems necessary. 

* * * * * * * 

(h) MISCELLANEOUS PROVISIONS.— 

130 

(1) * * * 

* * * * * * * 

(4) DEFINITION OF RECRUIT OR REFER.—As used in this section, the term ‘‘refer’’ means the act of sending or directing a 

person or transmitting documentation or information to another, directly or indirectly, with the intent of obtaining employment in the United States for such person. Generally, only persons or entities referring for remuneration (whether on a retainer or contingency basis) are included in the definition. However, union hiring halls that refer union members or nonunion 

individuals who pay union membership dues are included in 

the definition whether or not they receive remuneration, as are 

labor service agencies, whether public, private, for-profit, or 

nonprofit, that refer, dispatch, or otherwise facilitate the hiring 

of laborers for any period of time by a third party. As used in 

this section the term ‘‘recruit’’ means the act of soliciting a person, directly or indirectly, and referring the person to another 

with the intent of obtaining employment for that person. Generally, only persons or entities recruiting for remunerations 

(whether on a retainer or contingency basis) are included in the 

definition. However, union hiring halls that refer union members or nonunion individuals who pay union membership dues 

are included in this definition whether or not they receive remuneration, as are labor service agencies, whether public, private, 

for-profit, or nonprofit that recruit, dispatch, or otherwise facilitate the hiring of laborers for any period of time by a third 

party. 

* * * * * * * 

CIVIL PENALTIES FOR FAILURE TO DEPART

SEC. 274D. (a) IN GENERAL.—Any alien subject to a final order 

of removal who— 

(1) * * * 

* * * * * * * 

shall pay a civil penalty of not more than $500 to the øCommissioner¿ Secretary of Homeland Security for each day the alien is in 

violation of this section. 

* * * * * * * 

(c) INELIGIBILITY FOR RELIEF.— 

(1) IN GENERAL.—Subject to paragraph (2), unless a timely 

motion to reopen is granted under section 240(c)(6), an alien described in subsection (a) shall be ineligible for any discretionary 

relief from removal pursuant to a motion to reopen during the 

time the alien remains in the United States and for a period of 

10 years after the alien’s departure. 

(2) EXCEPTION.—Paragraph (1) does not preclude a motion 

to reopen to seek withholding of removal under section 241(b)(3) 

or protection against torture. 

* * * * * * * 

131 

ENTRY OF ALIEN AT IMPROPER TIME OR PLACE; UNLAWFUL PRESENCE; 

MISREPRESENTATION AND CONCEALMENT OF FACTS

SEC. 275. (a) øAny alien¿ Except as provided in subsection (b), 

any alien who (1) enters or attempts to enter the United States at 

any time or place other than as designated by immigration officers, 

or (2) eludes examination or inspection by immigration officers, 

øor¿ (3) attempts to enter or obtains entry to the United States by 

a willfully false or misleading representation or the willful concealment of a material fact, or (4) is otherwise present in the United 

States in violation of the immigration laws or the regulations prescribed thereunder, shall, for the first commission of any such offense, be fined under title 18, United States Code, or imprisoned 

not more than ø6 months¿ one year and a day, or both, and, for 

a subsequent commission of any such offense or following an order 

of voluntary departure, be fined under title 18, United States Code, 

or imprisoned not more than 2 years, or both. 

* * * * * * * 

(c) An individual who knowingly enters into a marriage for the 

purpose of evading any provision of the immigration laws shall be 

imprisoned for not more than ø5¿ 10 years, or fined not more than 

$250,000, or both. An offense under this subsection continues until 

the fraudulent nature of the marriage is discovered by an immigration officer. 

(d) Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than ø5¿ 10 years, fined 

in accordance with title 18, United States Code, or both. An offense 

under this subsection continues until the fraudulent nature of the 

commercial enterprise is discovered by an immigration officer. 

(e)(1) Any alien described in paragraph (2)— 

(A) shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both, if the offense described in such paragraph was committed subsequent to a conviction or convictions for commission of three or more misdemeanors involving drugs, crimes against the person, or both, 

or a felony (other than an aggravated felony); or 

(B) shall be fined under title 18, United States Code, imprisoned not more than 20 years, or both, if such offense was 

committed subsequent to a conviction for commission of an aggravated felony. 

(2) An alien described in this paragraph is an alien who— 

(A) enters or attempts to enter the United States at any 

time or place other than as designated by immigration officers; 

(B) eludes examination or inspection by immigration officers; 

(C) attempts to enter or obtains entry to the United States 

by a willfully false or misleading representation or the willful 

concealment of a material fact; or 

(D) is otherwise present in the United States in violation of 

the immigration laws or the regulations prescribed thereunder. 

(3) The prior convictions in subparagraph (A) or (B) of paragraph (1) are elements of those crimes and the penalties in those 

subparagraphs shall apply only in cases in which the conviction (or 

convictions) that form the basis for the additional penalty are alVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00135 Fmt 6659 Sfmt 6603 E:\HR\OC\HR345P1.XXX HR345P1
132 

leged in the indictment or information and are proven beyond a reasonable doubt at trial or admitted by the defendant in pleading 

guilty. Any admissible evidence may be used to show that the prior 

conviction is an aggravated felony or other qualifying crime, and 

the criminal trial for a violation of this section shall not be bifurcated. 

(4) An offense under subsection (a) or paragraph (1) of this subsection continues until the alien is discovered within the United 

States by immigration officers. 

(f) For purposes of this section, the term ‘‘attempts to enter’’ refers to the general intent of the alien to enter the United States and 

does not refer to the intent of the alien to violate the law. 

REENTRY OF REMOVED ALIEN

SEC. 276. (a) Subject to subsection (b), any alien who— 

(1) * * * 

(2) enters, attempts to enter, or is at any time found in, 

the United Statesø, unless (A) prior to his reembarkation at a 

place outside the United States or his application for admission 

from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or 

(B) with respect to an alien previously denied admission and 

removed, unless such alien shall establish that he was not required to obtain such advance consent under this or any prior 

Act,¿, shall be fined under title 18, United States Code, or øimprisoned 

not more than 2 years,¿ imprisoned for a term of not less than 1 

year and not more than 2 years, or both. It shall be an affirmative 

defense to an offense under this subsection that (A) prior to an 

alien’s reembarkation at a place outside the United States or an 

alien’s application for admission from foreign contiguous territory, 

the Secretary of Homeland Security has expressly consented to the 

alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, such alien was not required 

to obtain such advance consent under this Act or any prior Act. 

(b) Notwithstanding subsection (a), in the case of any alien described in such subsection— 

(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes 

against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, United 

States Code, øimprisoned not more than 10 years,¿ imprisoned 

for a term of not less than 5 years and not more than 10 years, 

or both; 

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined 

under such title, øimprisoned not more than 20 years,¿ imprisoned for a term of not less than 10 years and not more than 

20 years, or both; 

(3) who has been excluded from the United States pursuant to section 235(c) because the alien was excludable under 

section 212(a)(3)(B) or who has been removed from the United 

States pursuant to the provisions of title V, and who thereafter, without the permission of the øAttorney General¿ Secretary of Homeland Security, enters the United States, or atVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00136 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
133 

tempts to do so, shall be fined under title 18, United States 

Code, and imprisoned for a period of 10 years, which sentence 

shall not run concurrently with any other sentenceø. or¿; or 

(4) who was removed from the United States pursuant to 

section 241(a)(4)(B) who thereafter, without the permission of 

the øAttorney General¿ Secretary of Homeland Security, enters, attempts to enter, or is at any time found in, the United 

States (unless the øAttorney General¿ Secretary of Homeland 

Security has expressly consented to such alien’s reentry) shall 

be fined under title 18, United States Code, øimprisoned for 

not more than 10 years,¿ imprisoned for a term of not less than 

5 years and not more than 10 years, or both. 

For the purposes of this subsection, the term ‘‘removal’’ includes 

any agreement in which an alien stipulates to removal during (or 

not during) a criminal trial under either Federal or State law. The 

prior convictions in paragraphs (1) and (2) are elements of enhanced crimes and the penalties under such paragraphs shall apply 

only where the conviction (or convictions) that form the basis for the 

additional penalty are alleged in the indictment or information and 

are proven beyond a reasonable doubt at trial or admitted by the 

defendant in pleading guilty. Any admissible evidence may be used 

to show that the prior conviction is a qualifying crime and the 

criminal trial for a violation of either such paragraph shall not be 

bifurcated. 

(c) Any alien deported pursuant to section ø242(h)(2)¿ 241(a)(4) 

who enters, attempts to enter, or is at any time found in, the 

United States (unless the øAttorney General¿ Secretary of Homeland Security has expressly consented to such alien’s reentry) 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. Such alien shall be subject to 

such other penalties relating to the reentry of deported aliens as 

may be available under this section or any other provision of law. 

* * * * * * * 

(e) For purposes of this section, the term ‘‘attempts to enter’’ refers to the general intent of the alien to enter the United States and 

does not refer to the intent of the alien to violate the law. 

AIDING OR ASSISTING CERTAIN ALIENS TO ENTER THE UNITED STATES

SEC. 277. øAny person¿ (a) Subject to subsection (b), any person 

who knowingly aids or assists any alien inadmissible under section 

212(a)(2) (insofar as an alien inadmissible under such section has 

been convicted of an aggravated felony) or 212(a)(3) (other than 

subparagraph (E) thereof) to enter the United States, or who connives or conspires with any person or persons to allow, procure, or 

permit any such alien to enter the United States, shall be fined 

under title 18, United States Code, or imprisoned not more than 

10 years, or both. 

(b)(1) Any person who knowingly aids or assists any alien violating section 276(b) to reenter the United States, or who connives 

or conspires with any person or persons to allow, procure, or permit 

any such alien to reenter the United States, shall be fined under 

title 18, United States Code, imprisoned for a term imposed under 

paragraph (2), or both. 

134 

(2) The term of imprisonment imposed under paragraph (1) 

shall be within the range to which the reentering alien is subject 

under section 276(b). 

* * * * * * * 

CENTRAL FILE; INFORMATION FROM OTHER DEPARTMENTS AND

AGENCIES

SEC. 290. (a) * * * 

(b) Any information in any records kept by any department or 

agency of the Government as to the identity and location of aliens 

in the United States, or as to any person seeking any benefit or 

privilege under the immigration laws, shall be made available to 

the øService¿ Secretary of Homeland Security upon request made 

by the øAttorney General¿ Secretary to the head of any such department or agency. 

* * * * * * * 

TITLE III—NATIONALITY AND NATURALIZATION 

* * * * * * * 

CHAPTER 2—NATIONALITY THROUGH NATURALIZATION

* * * * * * * 

NATURALIZATION AUTHORITY

SEC. 310. (a) * * * 

* * * * * * * 

(c) JUDICIAL REVIEW.—A person whose application for naturalization under this title is denied, after a hearing before an immigration officer under section 336(a), may, no later than the date 

that is 120 days after the Secretary’s final determination seek review of such denial before the United States district court for the 

district in which such person resides in accordance with chapter 7 

of title 5, United States Code. øSuch review shall be de novo, and 

the court shall make its own findings of fact and conclusions of law 

and shall, at the request of the petitioner, conduct a hearing de 

novo on the application.¿ The burden shall be upon the petitioner 

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, notwithstanding any other provision of 

law (statutory or nonstatutory), including section 2241 of title 28, 

United States Code, or 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, for purposes of an application for naturalization, whether an alien is a person of good moral character, whether 

an alien understands and is attached to the principles of the Constitution of the United States, or whether an alien is well disposed 

to the good order and happiness of the United States. 

* * * * * * * 

135 

REQUIREMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER, ATTACH- MENT TO THE PRINCIPLES OF THE CONSTITUTION, AND FAVORABLE

DISPOSITION TO THE UNITED STATES

SEC. 316. (a) * * * 

* * * * * * * 

(g) No person shall be naturalized who the Secretary of Homeland Security determines, in the Secretary’s discretion, to have been 

at any time 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 over any application for naturalization, regardless whether such jurisdiction to review a decision or action of the Secretary is de novo or otherwise. 

* * * * * * * 

PREREQUISITE TO NATURALIZATION; BURDEN OF PROOF

SEC. 318. Except as otherwise provided in this title, no person 

shall be naturalized unless he has been lawfully admitted to the 

United States for permanent residence in accordance with all applicable provisions of this Act. The burden of proof shall be upon such 

person to show that he entered the United States lawfully, and the 

time, place, and manner of such entry into the United States, but 

in presenting such proof he shall be entitled to the production of 

his immigrant visa, if any, or of other entry document, if any, and 

of any other documents and records, not considered by the Attorney 

General to be confidential, pertaining to such entry, in the custody 

of the Service. Notwithstanding the provisions of section 405(b), 

and except as provided in sections 328 and 329 no person shall be 

naturalized against whom there is outstanding a final finding of 

deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act; and no application for naturalization øshall be considered by the Attorney General¿ shall be considered by the Secretary of Homeland Security or any court if there is 

pending against the applicant a removal proceeding øpursuant to 

a warrant of arrest issued under the provisions of this or any other 

Act:¿ 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 proceeding was commenced: Provided, That the findings 

of the Attorney General in terminating removal proceedings or in 

canceling the removal of an alien pursuant to the provisions of this 

Act, shall not be deemed binding in any way øupon the Attorney 

General¿ upon the Secretary of Homeland Security with respect to 

the question of whether such person has established his eligibility 

for naturalization as required by this title. 

* * * * * * * 

HEARINGS ON DENIALS OF APPLICATIONS FOR NATURALIZATION

SEC. 336. (a) * * * 

ø(b) If there is a failure to make a determination under section 

335 before the end of the 120-day period after the date on which 

136 

the examination is conducted under such section, the applicant 

may apply to the United States district court for the district in 

which the applicant resides for a hearing on the matter. Such court 

has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the 

Service to determine the matter.¿ 

(b) If there is a failure to render a final administrative decision 

under section 335 before the end of the 180-day period after the date 

on which the Secretary of Homeland Security completes all examinations and interviews conducted under such section, as such terms 

are defined by the Secretary pursuant to regulations, the applicant 

may apply to the district court for the district in which the applicant 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 for the Secretary’s determination on the application. 

* * * * * * * 

SECTION 924 OF TITLE 18, UNITED STATES CODE 

§ 924. Penalties 

(a) * * * 

* * * * * * * 

(c)(1)(A) Except to the extent that a greater minimum sentence 

is otherwise provided by this subsection or by any other provision 

of law, any person who, during and in relation to any crime of violence, alien smuggling crime, or drug trafficking crime (including a 

crime of violence, alien smuggling crime, or drug trafficking crime 

that provides for an enhanced punishment if committed by the use 

of a deadly or dangerous weapon or device) for which the person 

may be prosecuted in a court of the United States, uses or carries 

a firearm, or who, in furtherance of any such crime, possesses a 

firearm, shall, in addition to the punishment provided for such 

crime of violence, alien smuggling crime, or drug trafficking 

crime— 

(i) * * * 

* * * * * * * 

(D) Notwithstanding any other provision of law— 

(i) * * * 

(ii) no term of imprisonment imposed on a person under 

this subsection shall run concurrently with any other term of 

imprisonment imposed on the person, including any term of 

imprisonment imposed for the crime of violence, alien smuggling crime, or drug trafficking crime during which the firearm 

was used, carried, or possessed. 

* * * * * * * 

(6) For purposes of 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, or 1328). 

* * * * * * * 

137 

HOMELAND SECURITY ACT OF 2002 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) * * * 

(b) TABLE OF CONTENTS.—The table of contents for this Act is 

as follows: 

Sec. 1. Short title; table of contents. 

* * * * * * * 

TITLE IV—DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY 

* * * * * * * 

Subtitle C—Miscellaneous Provisions 

Sec. 421. Transfer of certain agricultural inspection functions of the Department of 

Agriculture. 

* * * * * * * 

Sec. 431. Office of Air and Marine Operations. 

* * * * * * * 

TITLE I—DEPARTMENT OF HOMELAND 

SECURITY 

* * * * * * * 

SEC. 103. OTHER OFFICERS. 

(a) DEPUTY SECRETARY; UNDER SECRETARIES.—There are the 

following officers, appointed by the President, by and with the advice and consent of the Senate: 

(1) * * * 

* * * * * * * 

(9) Not more than ø12¿ 13 Assistant Secretaries. 

* * * * * * * 

TITLE IV—DIRECTORATE OF BORDER 

AND TRANSPORTATION SECURITY 

* * * * * * * 

Subtitle C—Miscellaneous Provisions 

* * * * * * * 

SEC. 431. OFFICE OF AIR AND MARINE OPERATIONS. 

(a) ESTABLISHMENT.—There is established in the Department 

an Office of Air and Marine Operations (referred to in this section 

as the ‘‘Office’’). 

(b) ASSISTANT SECRETARY.—The Office shall be headed by an 

Assistant Secretary for Air and Marine Operations who shall be appointed by the President, by and with the advice and consent of the 

Senate, and who shall report directly to the Secretary. The Assistant 

Secretary shall be responsible for all functions and operations of the 

Office. 

138 

(c) MISSIONS.— 

(1) PRIMARY MISSION.—The primary mission of the Office 

shall be the prevention of the entry of terrorists, other unlawful 

aliens, instruments of terrorism, narcotics, and other contraband into the United States. 

(2) SECONDARY MISSION.—The secondary mission of the Office shall be to assist other agencies to prevent the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States. 

(d) AIR AND MARINE OPERATIONS CENTER.— 

(1) IN GENERAL.—The Office shall operate and maintain 

the Air and Marine Operations Center in Riverside, California, 

or at such other facility of the Office as is designated by the 

Secretary. 

(2) DUTIES.—The Center shall provide comprehensive 

radar, communications, and control services to the Office and 

to eligible Federal, State, or local agencies (as determined by 

the Assistant Secretary for Air and Marine Operations), in 

order to identify, track, and support the interdiction and apprehension of individuals attempting to enter United States airspace or coastal waters for the purpose of narcotics trafficking, 

trafficking of persons, or other terrorist or criminal activity. 

(e) ACCESS TO INFORMATION.—The Office shall ensure that 

other agencies within the Department of Homeland Security, the Department of Defense, the Department of Justice, and such other Federal, State, or local agencies, as may be determined by the Secretary, shall have access to the information gathered and analyzed 

by the Center. 

(f) REQUIREMENT.—Beginning not later than 180 days after the 

date of the enactment of this Act, the Secretary shall require that 

all information concerning all aviation activities, including all airplane, helicopter, or other aircraft flights, that are undertaken by 

the either the Office, United States Immigration and Customs Enforcement, United States Customs and Border Protection, or any 

subdivisions thereof, be provided to the Air and Marine Operations 

Center. Such information shall include the identifiable transponder, 

radar, and electronic emissions and codes originating and resident 

aboard the aircraft or similar asset used in the aviation activity. 

(g) TIMING.—The Secretary shall require the information described in subsection (f) to be provided to the Air and Marine Operations Center in advance of the aviation activity whenever practicable for the purpose of timely coordination and conflict resolution 

of air missions by the Office, United States Immigration and Customs Enforcement, and United States Customs and Border Protection. 

(h) RULE OF CONSTRUCTION.—Nothing in this section shall be 

construed to alter, impact, diminish, or in any way undermine the 

authority of the Administrator of the Federal Aviation Administration to oversee, regulate, and control the safe and efficient use of the 

airspace of the United States. 

* * * * * * * 

139 

SECTION 103 OF THE REAL ID Act of 2005 

(Division B of Public Law 109–13) 

SEC. 103. INADMISSIBILITY DUE TO TERRORIST AND TERRORIST-RELATED ACTIVITIES. 

(a) * * * 

* * * * * * * 

(d) EFFECTIVE DATE.—The amendments made by this section 

shall take effect on the date of the enactment of this division, and 

these amendments, and section 212(a)(3)(B) of the Immigration and 

Nationality Act (8 U.S.C. 1182(a)(3)(B)), as amended by this section, shall apply to— 

(1) removal, deportation, and exclusion proceedings instituted before, on, or after the date of the enactment of this division; and 

* * * * * * * 

SECTION 509 OF THE IMMIGRATION ACT OF 1990 

SEC. 509. GOOD MORAL CHARACTER DEFINITION. 

(a) * * * 

ø(b) EFFECTIVE DATE.—The amendment made by subsection (a) 

shall take effect on the date of the enactment of this Act and shall 

apply to convictions occurring on or after such date, except with respect to conviction for murder which shall be considered a bar to 

good moral character regardless of the date of the conviction.¿ 

(b) EFFECTIVE DATE.—The amendment made by subsection (a) 

shall take effect on November 29, 1990, and shall apply to convictions occurring before, on, or after such date. 

SECTION 5504 OF THE INTELLIGENCE REFORM AND 

TERRORISM PREVENTION ACT OF 2004 

SEC. 5504. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE 

COMMITTED ACTS OF TORTURE, EXTRAJUDICIAL 

KILLINGS, OR SEVERE VIOLATIONS OF RELIGIOUS FREEDOM. 

Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 

1101(f)) is amended— 

(1) * * * 

(2) by øadding at the end¿ inserting immediately after 

paragraph (8) the following: 

‘‘(9) one who at any time has engaged in conduct described 

in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture 

or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom).’’. 

140 

SECTION 401 OF THE ILLEGAL IMMIGRATION REFORM 

AND IMMIGRANT RESPONSIBILITY ACT OF 1996 

SEC. 401. ESTABLISHMENT OF PROGRAMS. 

(a) * * * 

(b) IMPLEMENTATION DEADLINE; TERMINATION.—The Secretary 

of Homeland Security shall implement the pilot programs in a 

manner that permits persons and other entities to have elections 

under section 402 of this division made and in effect no later than 

1 year after the date of the enactment of this Act. Unless the Congress otherwise provides, the Secretary of Homeland Security shall 

terminate a pilot program øat the end of the 11-year period beginning on the first day the pilot program is in effect¿ two years after 

the enactment of the Border Protection, Antiterrorism, and Illegal 

Immigration Control Act of 2005. 

* * * * * * * 

141 

COMMITTEE JURISDICTION LETTERS


37Let1.eps
142 


37Let2.eps
143 


37Let3A.eps
144 


37Let3B.eps
145 


37Let4.eps
146 

MARKUP TRANSCRIPT

BUSINESS MEETING 

THURSDAY, DECEMBER 8, 2005 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:04 a.m., in Room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee), presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present. 

[Intervening business.] 

Chairman SENSENBRENNER. Now, pursuant to notice, I call up 

the bill, H.R. 4437, the ‘‘Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005’’ for purposes of markup and 

move its favorable recommendation to the House. Without objection, the bill will be considered open for amendment by title, then 

each title will be considered as read. 

[The bill, H.R. 4337, follows:] 

147 

1

I

109TH CONGRESS

1ST SESSION H. R. 4437

To amend the Immigration and Nationality Act to strengthen enforcement

of the immigration laws, to enhance border security, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

DECEMBER 6, 2005

Mr. SENSENBRENNER (for himself, Mr. KING of New York, Mr. SMITH of

Texas, Ms. FOXX, Mr. DANIEL E. LUNGREN of California, Mr. ISSA, and

Mr. GARY G. MILLER of California) introduced the following bill; which

was referred to the Committee on the Judiciary, and in addition to the

Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions

as fall within the jurisdiction of the committee concerned

A BILL

To amend the Immigration and Nationality Act to strengthen

enforcement of the immigration laws, to enhance border

security, and for other purposes.

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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Border Protection, Antiterrorism, and Illegal Immigra6 tion Control Act of 2005’’.


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1 (b) TABLE OF CONTENTS.—The table of contents of

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. State defined.

TITLE I—SECURING UNITED STATES BORDERS

Sec. 101. Achieving operational control on the border.

Sec. 102. National strategy for border security.

Sec. 103. Implementation of cross-border security agreements.

Sec. 104. Biometric data enhancements.

Sec. 105. One face at the border initiative.

Sec. 106. Secure communication.

Sec. 107. Port of entry inspection personnel.

Sec. 108. Canine detection teams.

Sec. 109. Secure border initiative financial accountability.

Sec. 110. Border patrol training capacity review.

Sec. 111. Airspace security mission impact review.

Sec. 112. Repair of private infrastructure on border.

Sec. 113. Border Patrol unit for Virgin Islands.

Sec. 114. Report on progress in tracking travel of Central American gangs

along international border.

Sec. 115. Collection of data.

Sec. 116. Deployment of radiation detection portal equipment at United States

ports of entry.

Sec. 117. Consultation with businesses and firms.

TITLE II—COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY

AND PRESENCE

Sec. 201. Definition of aggravated felony.

Sec. 202. Alien smuggling and related offenses.

Sec. 203. Improper entry by, or presence of, aliens.

Sec. 204. Reentry of removed aliens.

Sec. 205. Mandatory sentencing ranges for persons aiding or assisting certain

reentering aliens.

Sec. 206. Prohibiting carrying or using a firearm during and in relation to an

alien smuggling crime.

Sec. 207. Clarifying changes.

Sec. 208. Voluntary departure reform.

Sec. 209. Deterring aliens ordered removed from remaining in the United

States unlawfully and from unlawfully returning to the United

States after departing voluntarily.

TITLE III—BORDER SECURITY COOPERATION AND

ENFORCEMENT

Sec. 301. Joint strategic plan for United States border surveillance and support.

Sec. 302. Border security on protected land.

Sec. 303. Border security threat assessment and information sharing test and

evaluation exercise.

Sec. 304. Border Security Advisory Committee.


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Sec. 305. Permitted use of Homeland Security grant funds for border security

activities.

Sec. 306. Center of excellence for border security.

Sec. 307. Sense of Congress regarding cooperation with Indian Nations.

TITLE IV—DETENTION AND REMOVAL

Sec. 401. Mandatory detention for aliens apprehended at or between ports of

entry.

Sec. 402. Expansion and effective management of detention facilities.

Sec. 403. Enhancing transportation capacity for unlawful aliens.

Sec. 404. Denial of admission to nationals of country denying or delaying accepting alien.

Sec. 405. Report on financial burden of repatriation.

Sec. 406. Training program.

Sec. 407. Expedited removal.

TITLE V—EFFECTIVE ORGANIZATION OF BORDER SECURITY

AGENCIES

Sec. 501. Enhanced border security coordination and management.

Sec. 502. Office of Air and Marine Operations.

Sec. 503. Shadow Wolves transfer.

TITLE VI—TERRORIST AND CRIMINAL ALIENS

Sec. 601. Removal of terrorist aliens.

Sec. 602. Detention of dangerous aliens.

Sec. 603. Increase in criminal penalties.

Sec. 604. Precluding admissibility of aggravated felons and other criminals.

Sec. 605. Precluding refugee or asylee adjustment of status for aggravated felonies.

Sec. 606. Removing drunk drivers.

Sec. 607. Designated county law enforcement assistance program.

Sec. 608. Rendering inadmissible and deportable aliens participating in criminal

street gangs; detention; ineligibility from protection from removal and asylum.

Sec. 609. Naturalization reform.

Sec. 610. Expedited removal for aliens inadmissible on criminal or security

grounds.

Sec. 611. Technical correction for effective date in change in inadmissibility for

terrorists under REAL ID Act.

Sec. 612. Bar to good moral character.

Sec. 613. Strengthening definitions of ‘‘aggravated felony’’ and ‘‘conviction’’.

Sec. 614. Deportability for criminal offenses.

TITLE VII—EMPLOYMENT ELIGIBILITY VERIFICATION

Sec. 701. Employment eligibility verification system.

Sec. 702. Employment eligibility verification process.

Sec. 703. Expansion of employment eligibility verification system to previously

hired individuals and recruiting and referring.

Sec. 704. Basic pilot program.

Sec. 705. Hiring halls.

Sec. 706. Penalties.

Sec. 707. Report on Social Security card-based employment eligibility verification.


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Sec. 708. Effective date.

TITLE VIII—IMMIGRATION LITIGATION ABUSE REDUCTION

Sec. 801. Board of Immigration Appeals removal order authority.

Sec. 802. Judicial review of visa revocation.

Sec. 803. Reinstatement.

Sec. 804. Withholding of removal.

Sec. 805. Certificate of reviewability.

Sec. 806. Waiver of rights in nonimmigrant visa issuance.

1 SEC. 2. STATE DEFINED.

2 In titles I, III, IV, and V of this Act, the term

3 ‘‘State’’ has the meaning given it in section 2(14) of the

4 Homeland Security Act of 2002 (6 U.S.C. 101(14)).

5 TITLE I—SECURING UNITED

6 STATES BORDERS

7 SEC. 101. ACHIEVING OPERATIONAL CONTROL ON THE

8 BORDER.

9 (a) IN GENERAL.—The Secretary of Homeland Secu10 rity shall take all actions the Secretary determines nec11 essary and appropriate to achieve and maintain oper12 ational control over the entire international land and mari13 time borders of the United States, to include the

14 following—

15 (1) systematic surveillance of the international

16 land and maritime borders of the United States

17 through more effective use of personnel and tech18 nology, such as unmanned aerial vehicles, ground19 based sensors, satellites, radar coverage, and cam20 eras;


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1 (2) physical infrastructure enhancements to

2 prevent unlawful entry by aliens into the United

3 States and facilitate access to the international land

4 and maritime borders by United States Customs and

5 Border Protection, such as additional checkpoints,

6 all weather access roads, and vehicle barriers;

7 (3) hiring and training as expeditiously as pos8 sible additional Border Patrol agents authorized

9 under section 5202 of the Intelligence Reform and

10 Terrorism Prevention Act of 2004 (Public Law 108–

11 458); and

12 (4) increasing deployment of United States

13 Customs and Border Protection personnel to areas

14 along the international land and maritime borders of

15 the United States where there are high levels of un16 lawful entry by aliens and other areas likely to be

17 impacted by such increased deployment.

18 (b) OPERATIONAL CONTROL DEFINED.—In this sec19 tion, the term ‘‘operational control’’ means the prevention

20 of the entry into the United States of terrorists, other un21 lawful aliens, instruments of terrorism, narcotics, and

22 other contraband.

23 SEC. 102. NATIONAL STRATEGY FOR BORDER SECURITY.

24 (a) SURVEILLANCE PLAN.—Not later than six

25 months after the date of the enactment of this Act, the


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1 Secretary of Homeland Security shall submit to the appro2 priate congressional committees a comprehensive plan for

3 the systematic surveillance of the international land and

4 maritime borders of the United States. The plan shall in5 clude the following:

6 (1) An assessment of existing technologies em7 ployed on such borders.

8 (2) A description of whether and how new sur9 veillance technologies will be compatible with exist10 ing surveillance technologies.

11 (3) A description of how the United States Cus12 toms and Border Protection is working, or is ex13 pected to work, with the Directorate of Science and

14 Technology of the Department of Homeland Secu15 rity to identify and test surveillance technology.

16 (4) A description of the specific surveillance

17 technology to be deployed.

18 (5) The identification of any obstacles that may

19 impede full implementation of such deployment.

20 (6) A detailed estimate of all costs associated

21 with the implementation of such deployment and

22 continued maintenance of such technologies.

23 (7) A description of how the Department of

24 Homeland Security is working with the Federal

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1 trol issues associated with the use of unmanned aer2 ial vehicles in the National Airspace System.

3 (b) NATIONAL STRATEGY FOR BORDER SECURITY.—

4 Not later than one year after the date of the enactment

5 of this Act, the Secretary of Homeland Security, in con6 sultation with the heads of other appropriate Federal

7 agencies, shall submit to the appropriate congressional

8 committees a National Strategy for Border Security to

9 achieve operational control over all ports of entry into the

10 United States and the international land and maritime

11 borders of the United States. The Secretary shall update

12 the Strategy as needed and shall submit to the Committee

13 on Homeland Security of the House of Representatives,

14 not later than 30 days after each such update, the updated

15 Strategy. The National Strategy for Border Security shall

16 include the following:

17 (1) The implementation timeline for the surveil18 lance plan described in subsection (a).

19 (2) An assessment of the threat posed by ter20 rorists and terrorist groups that may try to infiltrate

21 the United States at points along the international

22 land and maritime borders of the United States.

23 (3) A risk assessment of all ports of entry to

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1 national land and maritime borders of the United

2 States with respect to—

3 (A) preventing the entry of terrorists,

4 other unlawful aliens, instruments of terrorism,

5 narcotics, and other contraband into the United

6 States; and

7 (B) protecting critical infrastructure at or

8 near such ports of entry or borders.

9 (4) An assessment of the most appropriate,

10 practical, and cost-effective means of defending the

11 international land and maritime borders of the

12 United States against threats to security and illegal

13 transit, including intelligence capacities, technology,

14 equipment, personnel, and training needed to ad15 dress security vulnerabilities.

16 (5) An assessment of staffing needs for all bor17 der security functions, taking into account threat

18 and vulnerability information pertaining to the bor19 ders and the impact of new security programs, poli20 cies, and technologies.

21 (6) A description of the border security roles

22 and missions of Federal, State, regional, local, and

23 tribal authorities, and recommendations with respect

24 to how the Department of Homeland Security can

25 improve coordination with such authorities, to enable


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1 border security enforcement to be carried out in an

2 efficient and effective manner.

3 (7) A prioritization of research and development

4 objectives to enhance the security of the inter5 national land and maritime borders of the United

6 States.

7 (8) A description of ways to ensure that the

8 free flow of legitimate travel and commerce of the

9 United States is not diminished by efforts, activities,

10 and programs aimed at securing the international

11 land and maritime borders of the United States.

12 (9) An assessment of additional detention facili13 ties and bed space needed to detain unlawful aliens

14 apprehended at United States ports of entry or

15 along the international land borders of the United

16 States in accordance with the National Strategy for

17 Border Security required under this subsection and

18 the mandatory detention requirement described in

19 section 301 of this Act.

20 (10) A description of how the Secretary shall

21 ensure accountability and performance metrics with22 in the appropriate agencies of the Department of

23 Homeland Security responsible for implementing the

24 border security measures determined necessary upon


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1 completion of the National Strategy for Border Se2 curity.

3 (11) A timeline for the implementation of the

4 additional security measures determined necessary

5 as part of the National Strategy for Border Secu6 rity, including a prioritization of security measures,

7 realistic deadlines for addressing the security and

8 enforcement needs, and resource estimates and allo9 cations.

10 (c) CONSULTATION.—In creating the National Strat11 egy for Border Security described in subsection (b), the

12 Secretary shall consult with—

13 (1) State, local, and tribal authorities along the

14 international land and maritime borders of the

15 United States; and

16 (2) an appropriate cross-section of private sec17 tor and nongovernmental organizations with relevant

18 expertise.

19 (d) PRIORITY OF NATIONAL STRATEGY.—The Na20 tional Strategy for Border Security described in subsection

21 (b) shall be the controlling document for security and en22 forcement efforts related to securing the international land

23 and maritime borders of the United States.

24 (e) IMMEDIATE ACTION.—Nothing in this section

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1 bility to take all actions necessary and appropriate to

2 achieve and maintain operational control over the entire

3 international land and maritime borders of the United

4 States pursuant to section 101 of this Act or any other

5 provision of law.

6 (f) REPORTING OF IMPLEMENTING LEGISLATION.—

7 After submittal of the National Strategy for Border Secu8 rity described in subsection (b) to the Committee on

9 Homeland Security of the House of Representatives, such

10 Committee shall promptly report to the House legislation

11 authorizing necessary security measures based on its eval12 uation of the National Strategy for Border Security.

13 (g) APPROPRIATE CONGRESSIONAL COMMITTEE.—

14 For purposes of this title, the term ‘‘appropriate congres15 sional committee’’ has the meaning given it in section 2(2)

16 of the Homeland Security Act of 2002 (6 U.S.C. 101(2)).

17 SEC. 103. IMPLEMENTATION OF CROSS-BORDER SECURITY

18 AGREEMENTS.

19 (a) IN GENERAL.—Not later than six months after

20 the date of the enactment of this Act, the Secretary of

21 Homeland Security shall submit to the appropriate con22 gressional committees (as defined in section 102(g)) a re23 port on the implementation of the cross-border security

24 agreements signed by the United States with Mexico and


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1 Canada, including recommendations on improving co2 operation with such countries to enhance border security.

3 (b) UPDATES.—The Secretary shall regularly update

4 the Committee on Homeland Security of the House of

5 Representatives concerning such implementation.

6 SEC. 104. BIOMETRIC DATA ENHANCEMENTS.

7 Not later than October 1, 2006, the Secretary of

8 Homeland Security shall—

9 (1) in consultation with the Attorney General,

10 enhance connectivity between the IDENT and

11 IAFIS fingerprint databases to ensure more expedi12 tious data searches; and

13 (2) in consultation with the Secretary of State,

14 collect ten fingerprints from each alien required to

15 provide fingerprints during the alien’s initial enroll16 ment in the integrated entry and exit data system

17 described in section 110 of the Illegal Immigration

18 Reform and Immigrant Responsibility Act of 1996

19 (8 U.S.C. 1221 note).

20 SEC. 105. ONE FACE AT THE BORDER INITIATIVE.

21 Not later than 90 days after the date of the enact22 ment of this Act, the Secretary of Homeland Security shall

23 submit to Congress a report—


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1 (1) describing the tangible and quantifiable

2 benefits of the One Face at the Border Initiative es3 tablished by the Department of Homeland Security;

4 (2) identifying goals for and challenges to in5 creased effectiveness of the One Face at the Border

6 Initiative;

7 (3) providing a breakdown of the number of in8 spectors who were—

9 (A) personnel of the United States Cus10 toms Service before the date of the establish11 ment of the Department of Homeland Security;

12 (B) personnel of the Immigration and Nat13 uralization Service before the date of the estab14 lishment of the Department;

15 (C) personnel of the Department of Agri16 culture before the date of the establishment of

17 the Department; or

18 (D) hired after the date of the establish19 ment of the Department;

20 (4) describing the training time provided to

21 each employee on an annual basis for the various

22 training components of the One Face at the Border

23 Initiative; and

24 (5) outlining the steps taken by the Department

25 to ensure that expertise is retained with respect to


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1 customs, immigration, and agriculture inspection

2 functions under the One Face at the Border Initia3 tive.

4 SEC. 106. SECURE COMMUNICATION.

5 The Secretary of Homeland Security shall, as expedi6 tiously as practicable, develop and implement a plan to

7 ensure clear and secure two-way communication

8 capabilities—

9 (1) among all Border Patrol agents conducting

10 operations between ports of entry;

11 (2) between Border Patrol agents and their re12 spective Border Patrol stations;

13 (3) between Border Patrol agents and residents

14 in remote areas along the international land border

15 who do not have mobile communications, as the Sec16 retary determines necessary; and

17 (4) between all appropriate Department of

18 Homeland Security border security agencies and

19 State, local, and tribal law enforcement agencies.

20 SEC. 107. PORT OF ENTRY INSPECTION PERSONNEL.

21 In each of fiscal years 2007 through 2010, the Sec22 retary of Homeland Security shall, subject to the avail23 ability of appropriations, increase by not less than 250 the

24 number of positions for full-time active duty port of entry

25 inspectors. There are authorized to be appropriated to the


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1 Secretary such sums as may be necessary for each such

2 fiscal year to hire, train, equip, and support such addi3 tional inspectors under this section.

4 SEC. 108. CANINE DETECTION TEAMS.

5 In each of fiscal years 2007 through 2011, the Sec6 retary of Homeland Security shall, subject to the avail7 ability of appropriations, increase by not less than 25 per8 cent above the number of such positions for which funds

9 were allotted for the preceding fiscal year the number of

10 trained detection canines for use at United States ports

11 of entry and along the international land and maritime

12 borders of the United States.

13 SEC. 109. SECURE BORDER INITIATIVE FINANCIAL AC14 COUNTABILITY.

15 (a) IN GENERAL.—The Inspector General of the De16 partment of Homeland Security shall review each contract

17 action related to the Department’s Secure Border Initia18 tive having a value greater than $20,000,000, to deter19 mine whether each such action fully complies with applica20 ble cost requirements, performance objectives, program

21 milestones, inclusion of small, minority, and women-owned

22 business, and timelines. The Inspector General shall com23 plete a review under this subsection with respect to a con24 tract action—


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1 (1) not later than 60 days after the date of the

2 initiation of the action; and

3 (2) upon the conclusion of the performance of

4 the contract.

5 (b) REPORT BY INSPECTOR GENERAL.—Upon com6 pletion of each review described in subsection (a), the In7 spector General shall submit to the Secretary of Homeland

8 Security a report containing the findings of the review,

9 including findings regarding any cost overruns, significant

10 delays in contract execution, lack of rigorous departmental

11 contract management, insufficient departmental financial

12 oversight, bundling that limits the ability of small business

13 to compete, or other high risk business practices.

14 (c) REPORT BY SECRETARY.—Not later than 30 days

15 after the receipt of each report required under subsection

16 (b), the Secretary of Homeland Security shall submit to

17 the appropriate congressional committees (as defined in

18 section 102(g)) a report on the findings of the report by

19 the Inspector General and the steps the Secretary has

20 taken, or plans to take, to address the problems identified

21 in such report.

22 (d) AUTHORIZATION OF APPROPRIATIONS.—In addi23 tion to amounts that are otherwise authorized to be appro24 priated to the Office of the Inspector General, an addi25 tional amount equal to at least five percent for fiscal year


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1 2007, at least six percent for fiscal year 2008, and at least

2 seven percent for fiscal year 2009 of the overall budget

3 of the Office for each such fiscal year is authorized to be

4 appropriated to the Office to enable the Office to carry

5 out this section.

6 SEC. 110. BORDER PATROL TRAINING CAPACITY REVIEW.

7 (a) IN GENERAL.—The Comptroller General of the

8 United States shall conduct a review of the basic training

9 provided to Border Patrol agents by the Department of

10 Homeland Security to ensure that such training is pro11 vided as efficiently and cost-effectively as possible.

12 (b) COMPONENTS OF REVIEW.—The review under

13 subsection (a) shall include the following components:

14 (1) An evaluation of the length and content of

15 the basic training curriculum provided to new Bor16 der Patrol agents by the Federal Law Enforcement

17 Training Center, including a description of how the

18 curriculum has changed since September 11, 2001.

19 (2) A review and a detailed breakdown of the

20 costs incurred by United States Customs and Border

21 Protection and the Federal Law Enforcement Train22 ing Center to train one new Border Patrol agent.

23 (3) A comparison, based on the review and

24 breakdown under paragraph (2) of the costs, effec25 tiveness, scope, and quality, including geographic


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1 characteristics, with other similar law enforcement

2 training programs provided by State and local agen3 cies, non-profit organizations, universities, and the

4 private sector.

5 (4) An evaluation of whether and how utilizing

6 comparable non-Federal training programs, pro7 ficiency testing to streamline training, and long-dis8 tance learning programs may affect—

9 (A) the cost-effectiveness of increasing the

10 number of Border Patrol agents trained per

11 year and reducing the per agent costs of basic

12 training; and

13 (B) the scope and quality of basic training

14 needed to fulfill the mission and duties of a

15 Border Patrol agent.

16 SEC. 111. AIRSPACE SECURITY MISSION IMPACT REVIEW.

17 Not later than 120 days after the date of the enact18 ment of this Act, the Secretary of Homeland Security shall

19 submit to the Committee on Homeland Security of the

20 House of Representatives a report detailing the impact the

21 airspace security mission in the National Capital Region

22 (in this section referred to as the ‘‘NCR’’) will have on

23 the ability of the Department of Homeland Security to

24 protect the international land and maritime borders of the

25 United States. Specifically, the report shall address:


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1 (1) The specific resources, including personnel,

2 assets, and facilities, devoted or planned to be de3 voted to the NCR airspace security mission, and

4 from where those resources were obtained or are

5 planned to be obtained.

6 (2) An assessment of the impact that diverting

7 resources to support the NCR mission has or is ex8 pected to have on the traditional missions in and

9 around the international land and maritime borders

10 of the United States.

11 SEC. 112. REPAIR OF PRIVATE INFRASTRUCTURE ON BOR12 DER.

13 (a) IN GENERAL.—Subject to the amount appro14 priated in subsection (d) of this section, the Secretary of

15 Homeland Security shall reimburse property owners for

16 costs associated with repairing damages to the property

17 owners’ private infrastructure constructed on a United

18 States Government right-of-way delineating the inter19 national land border when such damages are—

20 (1) the result of unlawful entry of aliens; and

21 (2) confirmed by the appropriate personnel of

22 the Department of Homeland Security and sub23 mitted to the Secretary for reimbursement.

24 (b) VALUE OF REIMBURSEMENTS.—Reimbursements

25 for submitted damages as outlined in subsection (a) shall


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1 not exceed the value of the private infrastructure prior to

2 damage.

3 (c) REPORTS.—Not later than six months after the

4 date of the enactment of this Act and every subsequent

5 six months until the amount appropriated for this section

6 is expended in its entirety, the Secretary of Homeland Se7 curity shall submit to the Committee on Homeland Secu8 rity of the House of Representatives a report that details

9 the expenditures and circumstances in which those ex10 penditures were made pursuant to this section.

11 (d) AUTHORIZATION OF APPROPRIATIONS.—There

12 shall be authorized to be appropriated an initial $50,000

13 for each fiscal year to carry out this section.

14 SEC. 113. BORDER PATROL UNIT FOR VIRGIN ISLANDS.

15 Not later than September 30, 2006, the Secretary of

16 Homeland Security shall establish at least one Border Pa17 trol unit for the Virgin Islands of the United States.

18 SEC. 114. REPORT ON PROGRESS IN TRACKING TRAVEL OF

19 CENTRAL AMERICAN GANGS ALONG INTER20 NATIONAL BORDER.

21 Not later than one year after the date of the enact22 ment of this Act, the Secretary of Homeland Security shall

23 report to the Committee on Homeland Security of the

24 House of Representatives on the progress of the Depart25 ment of Homeland Security in tracking the travel of CenVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00170 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 tral American gangs across the international land border

2 of the United States and Mexico.

3 SEC. 115. COLLECTION OF DATA.

4 Beginning on October 1, 2006, the Secretary of

5 Homeland Security shall annually compile data on the fol6 lowing categories of information:

7 (1) The number of unauthorized aliens who re8 quire medical care taken into custody by Border Pa9 trol officials.

10 (2) The number of unauthorized aliens with se11 rious injuries or medical conditions Border Patrol

12 officials encounter, and refer to local hospitals or

13 other health facilities.

14 (3) The number of unauthorized aliens with se15 rious injuries or medical conditions who arrive at

16 United States ports of entry and subsequently are

17 admitted into the United States for emergency med18 ical care, as reported by United States Customs and

19 Border Protection.

20 (4) The number of unauthorized aliens de21 scribed in paragraphs (2) and (3) who subsequently

22 are taken into custody by the Department of Home23 land Security after receiving medical treatment.


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1 SEC. 116. DEPLOYMENT OF RADIATION DETECTION POR2 TAL EQUIPMENT AT UNITED STATES PORTS

3 OF ENTRY.

4 (a) DEPLOYMENT.—Not later than one year after the

5 date of the enactment of this Act, the Secretary of Home6 land Security shall deploy radiation portal monitors at all

7 United States ports of entry and facilities as determined

8 by the Secretary to facilitate the screening of all inbound

9 cargo for nuclear and radiological material.

10 (b) REPORT.—Not later than 180 days after the date

11 of the enactment of this Act, the Secretary shall submit

12 to the Committee on Homeland Security of the House of

13 Representatives and the Committee on Homeland Security

14 and Governmental Affairs of the Senate a report on the

15 Department’s progress toward carrying out the deploy16 ment described in subsection (a).

17 (c) AUTHORIZATION OF APPROPRIATIONS.—There is

18 authorized to be appropriated to the Secretary to carry

19 out subsection (a) such sums as may be necessary for each

20 of fiscal years 2006 and 2007.

21 SEC. 117. CONSULTATION WITH BUSINESSES AND FIRMS.

22 With respect to the Secure Border Initiative and for

23 the purposes of strengthening security along the inter24 national land and maritime borders of the United States,

25 the Secretary of Homeland Security shall conduct out26 reach to and consult with members of the private sector,


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1 including business councils, associations, and small, mi2 nority-owned, women-owned, and disadvantaged busi3 nesses to—

4 (1) identify existing and emerging technologies,

5 best practices, and business processes;

6 (2) maximize economies of scale, cost-effective7 ness, systems integration, and resource allocation;

8 and

9 (3) identify the most appropriate contract

10 mechanisms to enhance financial accountability and

11 mission effectiveness of border security programs.

12 TITLE II—COMBATTING ALIEN

13 SMUGGLING AND ILLEGAL

14 ENTRY AND PRESENCE

15 SEC. 201. DEFINITION OF AGGRAVATED FELONY.

16 (a) IN GENERAL.—Section 101(a)(43) of the Immi17 gration and Nationality Act (8 U.S.C. 1101(a)(43)) is

18 amended—

19 (1) in subparagraph (N), by striking ‘‘para20 graph (1)(A) or (2) of section 274(a) (relating to

21 alien smuggling)’’ and inserting ‘‘section 274(a)’’

22 and by adding a semicolon at the end;

23 (2) in subparagraph (O), by striking ‘‘section

24 275(a) or 276 committed by an alien who was pre25 viously deported on the basis of a conviction for an


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1 offense described in another subparagraph of this

2 paragraph’’, and inserting ‘‘section 275 or section

3 276 for which the term of imprisonment was at least

4 one year’’;

5 (3) in subparagraph (U), by inserting before

6 ‘‘an attempt’’ the following: ‘‘soliciting, aiding, abet7 ting, counseling, commanding, inducing, procuring

8 or’’; and

9 (4) by striking all that follows subparagraph

10 (U) and inserting the following:

11 ‘‘The term applies—

12 ‘‘(i) to an offense described in this para13 graph whether in violation of Federal or State

14 law and applies to such an offense in violation

15 of the law of a foreign country for which the

16 term of imprisonment was completed within the

17 previous 15 years;

18 ‘‘(ii) even if the length of the term of im19 prisonment is based on recidivist or other en20 hancements;

21 ‘‘(iii) to an offense described in this para22 graph even if the statute setting forth the of23 fense of conviction sets forth other offenses not

24 described in this paragraph, unless the alien af25 firmatively shows, by a preponderance of eviVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00174 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 dence and using public records related to the

2 conviction, including court records, police

3 records and presentence reports, that the par4 ticular facts underlying the offense do not sat5 isfy the generic definition of that offense; and

6 ‘‘(iv) regardless of whether the conviction

7 was entered before, on, or after September 30,

8 1996, and notwithstanding any other provision

9 of law (including any effective date).’’.

10 (b) EFFECTIVE DATE.—The amendments made by

11 subsection (a) shall apply to offenses that occur before,

12 on, or after the date of the enactment of this Act.

13 SEC. 202. ALIEN SMUGGLING AND RELATED OFFENSES.

14 Section 274 of the Immigration and Nationality Act

15 (8 U.S.C. 1324) is amended to read as follows:

16 ‘‘ALIEN SMUGGLING AND RELATED OFFENSES

17 ‘‘SEC. 274. (a) CRIMINAL OFFENSES AND PEN18 ALTIES.—

19 ‘‘(1) PROHIBITED ACTIVITIES.—Whoever—

20 ‘‘(A) assists, encourages, directs, or in21 duces a person to come to or enter the United

22 States, or to attempt to come to or enter the

23 United States, knowing or in reckless disregard

24 of the fact that such person is an alien who

25 lacks lawful authority to come to or enter the

26 United States;


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1 ‘‘(B) assists, encourages, directs, or in2 duces a person to come to or enter the United

3 States at a place other than a designated port

4 of entry or place other than as designated by

5 the Secretary of Homeland Security, regardless

6 of whether such person has official permission

7 or lawful authority to be in the United States,

8 knowing or in reckless disregard of the fact

9 that such person is an alien;

10 ‘‘(C) assists, encourages, directs, or in11 duces a person to reside in or remain in the

12 United States, or to attempt to reside in or re13 main in the United States, knowing or in reck14 less disregard of the fact that such person is an

15 alien who lacks lawful authority to reside in or

16 remain in the United States;

17 ‘‘(D) transports or moves a person in the

18 United States, knowing or in reckless disregard

19 of the fact that such person is an alien who

20 lacks lawful authority to enter or be in the

21 United States, where the transportation or

22 movement will aid or further in any manner the

23 person’s illegal entry into or illegal presence in

24 the United States;


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1 ‘‘(E) harbors, conceals, or shields from de2 tection a person in the United States knowing

3 or in reckless disregard of the fact that such

4 person is an alien who lacks lawful authority to

5 be in the United States;

6 ‘‘(F) transports, moves, harbors, conceals,

7 or shields from detection a person outside of

8 the United States knowing or in reckless dis9 regard of the fact that such person is an alien

10 in unlawful transit from one country to another

11 or on the high seas, under circumstances in

12 which the person is in fact seeking to enter the

13 United States without official permission or

14 lawful authority; or

15 ‘‘(G) conspires or attempts to commit any

16 of the preceding acts,

17 shall be punished as provided in paragraph (2), re18 gardless of any official action which may later be

19 taken with respect to such alien.

20 ‘‘(2) CRIMINAL PENALTIES.—A person who vio21 lates the provisions of paragraph (1) shall—

22 ‘‘(A) except as provided in subparagraphs

23 (D) through (H), in the case where the offense

24 was not committed for commercial advantage,

25 profit, or private financial gain, be imprisoned


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1 for not more than 5 years, or fined under title

2 18, United States Code, or both;

3 ‘‘(B) except as provided in subparagraphs

4 (C) through (H), where the offense was com5 mitted for commercial advantage, profit, or pri6 vate financial gain—

7 ‘‘(i) in the case of a first violation of

8 this subparagraph, be imprisoned for not

9 more than 20 years, or fined under title

10 18, United States Code, or both; and

11 ‘‘(ii) for any subsequent violation, be

12 imprisoned for not less than 3 years nor

13 more than 20 years, or fined under title

14 18, United States Code, or both;

15 ‘‘(C) in the case where the offense was

16 committed for commercial advantage, profit, or

17 private financial gain and involved 2 or more

18 aliens other than the offender, be imprisoned

19 for not less than 3 nor more than 20 years, or

20 fined under title 18, United States Code, or

21 both;

22 ‘‘(D) in the case where the offense furthers

23 or aids the commission of any other offense

24 against the United States or any State, which

25 offense is punishable by imprisonment for more


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1 than 1 year, be imprisoned for not less than 5

2 nor more than 20 years, or fined under title 18,

3 United States Code, or both;

4 ‘‘(E) in the case where any participant in

5 the offense created a substantial risk of death

6 or serious bodily injury to another person,

7 including—

8 ‘‘(i) transporting a person in an en9 gine compartment, storage compartment,

10 or other confined space;

11 ‘‘(ii) transporting a person at an ex12 cessive speed or in excess of the rated ca13 pacity of the means of transportation; or

14 ‘‘(iii) transporting or harboring a per15 son in a crowded, dangerous, or inhumane

16 manner,

17 be imprisoned not less than 5 nor more than 20

18 years, or fined under title 18, United States

19 Code, or both;

20 ‘‘(F) in the case where the offense caused

21 serious bodily injury (as defined in section 1365

22 of title 18, United States Code, including any

23 conduct that would violate sections 2241 or

24 2242 of title 18, United States Code, if the con25 duct occurred in the special maritime and terriVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00179 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 torial jurisdiction of the United States) to any

2 person, be imprisoned for not less than 7 nor

3 more than 30 years, or fined under title 18,

4 United States Code, or both;

5 ‘‘(G) in the case where the offense involved

6 an alien who the offender knew or had reason

7 to believe was an alien—

8 ‘‘(i) engaged in terrorist activity (as

9 defined in section 212(a)(3)(B)); or

10 ‘‘(ii) intending to engage in such ter11 rorist activity,

12 be imprisoned for not less than 10 nor more

13 than 30 years, or fined under title 18, United

14 States Code, or both; and

15 ‘‘(H) in the case where the offense caused

16 or resulted in the death of any person, be pun17 ished by death or imprisoned for not less than

18 10 years, or any term of years, or for life, or

19 fined under title 18, United States Code, or

20 both.

21 ‘‘(3) EXTRATERRITORIAL JURISDICTION.—

22 There is extraterritorial Federal jurisdiction over the

23 offenses described in this subsection.

24 ‘‘(b) EMPLOYMENT OF UNAUTHORIZED ALIENS.—


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1 ‘‘(1) IN GENERAL.—Any person who, during

2 any 12-month period, knowingly hires for employ3 ment at least 10 individuals with actual knowledge

4 that the individuals are aliens described in para5 graph (2), shall be fined under title 18, United

6 States Code, imprisoned for not more than 5 years,

7 or both.

8 ‘‘(2) ALIEN DESCRIBED.—A alien described in

9 this paragraph is an alien who—

10 ‘‘(A) is an unauthorized alien (as defined

11 in section 274A(h)(3)); and

12 ‘‘(B) has been brought into the United

13 States in violation of subsection (a).

14 ‘‘(c) SEIZURE AND FORFEITURE.—

15 ‘‘(1) IN GENERAL.—Any property, real or per16 sonal, that has been used to commit or facilitate the

17 commission of a violation of this section, the gross

18 proceeds of such violation, and any property trace19 able to such property or proceeds, shall be subject

20 to forfeiture.

21 ‘‘(2) APPLICABLE PROCEDURES.—Seizures and

22 forfeitures under this subsection shall be governed

23 by the provisions of chapter 46 of title 18, United

24 States Code, relating to civil forfeitures, including

25 section 981(d) of such title, except that such duties


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1 as are imposed upon the Secretary of the Treasury

2 under the customs laws described in that section

3 shall be performed by such officers, agents, and

4 other persons as may be designated for that purpose

5 by the Secretary of Homeland Security.

6 ‘‘(d) AUTHORITY TO ARREST.—No officer or person

7 shall have authority to make any arrests for a violation

8 of any provision of this section except officers and employ9 ees designated by the Secretary of Homeland Security, ei10 ther individually or as a member of a class, and all other

11 officers whose duty it is to enforce criminal laws.

12 ‘‘(e) ADMISSIBILITY OF EVIDENCE.—

13 ‘‘(1) PRIMA FACIE EVIDENCE IN DETERMINA14 TIONS OF VIOLATIONS.—Notwithstanding any provi15 sion of the Federal Rules of Evidence, in deter16 mining whether a violation of subsection (a) has oc17 curred, any of the following shall be prima facie evi18 dence that an alien involved in the violation lacks

19 lawful authority to come to, enter, reside, remain, or

20 be in the United States or that such alien had come

21 to, entered, resided, remained or been present in the

22 United States in violation of law:

23 ‘‘(A) Any order, finding, or determination

24 concerning the alien’s status or lack thereof

25 made by a federal judge or administrative adjuVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00182 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 dicator (including an immigration judge or an

2 immigration officer) during any judicial or ad3 ministrative proceeding authorized under the

4 immigration laws or regulations prescribed

5 thereunder.

6 ‘‘(B) An official record of the Department

7 of Homeland Security, Department of Justice,

8 or the Department of State concerning the

9 alien’s status or lack thereof.

10 ‘‘(C) Testimony by an immigration officer

11 having personal knowledge of the facts con12 cerning the alien’s status or lack thereof.

13 ‘‘(2) VIDEOTAPED TESTIMONY.—Notwith14 standing any provision of the Federal Rules of Evi15 dence, the videotaped (or otherwise audiovisually

16 preserved) deposition of a witness to a violation of

17 subsection (a) who has been deported or otherwise

18 expelled from the United States, or is otherwise un19 available to testify, may be admitted into evidence in

20 an action brought for that violation if the witness

21 was available for cross examination at the deposition

22 and the deposition otherwise complies with the Fed23 eral Rules of Evidence.

24 ‘‘(f) DEFINITIONS.—For purposes of this section:


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1 ‘‘(1) The term ‘lawful authority’ means permis2 sion, authorization, or license that is expressly pro3 vided for in the immigration laws of the United

4 States or the regulations prescribed thereunder.

5 Such term does not include any such authority se6 cured by fraud or otherwise obtained in violation of

7 law, nor does it include authority that has been

8 sought but not approved. No alien shall be deemed

9 to have lawful authority to come to, enter, reside, re10 main, or be in the United States if such coming to,

11 entry, residence, remaining, or presence was, is, or

12 would be in violation of law.

13 ‘‘(2) The term ‘unlawful transit’ means travel,

14 movement, or temporary presence that violates the

15 laws of any country in which the alien is present, or

16 any country from which or to which the alien is trav17 eling or moving.’’.

18 SEC. 203. IMPROPER ENTRY BY, OR PRESENCE OF, ALIENS.

19 Section 275 of the Immigration and Nationality Act

20 (8 U.S.C. 1325) is amended—

21 (1) in the section heading, by inserting ‘‘UN22 LAWFUL PRESENCE;’’ after ‘‘IMPROPER TIME OR

23 PLACE;’’;


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1 (2) in subsection (a), by striking ‘‘Any alien’’

2 and inserting ‘‘Except as provided in subsection (b),

3 any alien’’;

4 (3) in subsection (a), by striking ‘‘or’’ before

5 (3) and by inserting after ‘‘concealment of a mate6 rial fact,’’ the following: ‘‘or (4) is otherwise present

7 in the United States in violation of the immigration

8 laws or the regulations prescribed thereunder,’’;

9 (4) in subsection (a), by striking ‘‘6 months’’

10 and inserting ‘‘one year and a day’’;

11 (5) in subsection (c)—

12 (A) by striking ‘‘5 years’’ and inserting

13 ‘‘10 years’’; and

14 (B) by adding at the end the following:

15 ‘‘An offense under this subsection continues

16 until the fraudulent nature of the marriage is

17 discovered by an immigration officer.’’;

18 (6) in subsection (d)—

19 (A) by striking ‘‘5 years’’ and inserting

20 ‘‘10 years’’;

21 (B) by adding at the end the following:

22 ‘‘An offense under this subsection continues

23 until the fraudulent nature of the commercial

24 enterprise is discovered by an immigration offi25 cer’’; and


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1 (7) by adding at the end the following new sub2 sections:

3 ‘‘(e)(1) Any alien described in paragraph (2)—

4 ‘‘(A) shall be fined under title 18, United

5 States Code, imprisoned not more than 10 years, or

6 both, if the offense described in such paragraph was

7 committed subsequent to a conviction or convictions

8 for commission of three or more misdemeanors in9 volving drugs, crimes against the person, or both, or

10 a felony (other than an aggravated felony); or

11 ‘‘(B) shall be fined under title 18, United

12 States Code, imprisoned not more than 20 years, or

13 both, if such offense was committed subsequent to a

14 conviction for commission of an aggravated felony.

15 ‘‘(2) An alien described in this paragraph is an alien

16 who—

17 ‘‘(A) enters or attempts to enter the United

18 States at any time or place other than as designated

19 by immigration officers;

20 ‘‘(B) eludes examination or inspection by immi21 gration officers;

22 ‘‘(C) attempts to enter or obtains entry to the

23 United States by a willfully false or misleading rep24 resentation or the willful concealment of a material

25 fact; or


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1 ‘‘(D) is otherwise present in the United States

2 in violation of the immigration laws or the regula3 tions prescribed thereunder.

4 ‘‘(3) The prior convictions in subparagraph (A) or

5 (B) of paragraph (1) are elements of those crimes and

6 the penalties in those subparagraphs shall apply only in

7 cases in which the conviction (or convictions) that form

8 the basis for the additional penalty are alleged in the in9 dictment or information and are proven beyond a reason10 able doubt at trial or admitted by the defendant in plead11 ing guilty. Any admissible evidence may be used to show

12 that the prior conviction is an aggravated felony or other

13 qualifying crime, and the criminal trial for a violation of

14 this section shall not be bifurcated.

15 ‘‘(4) An offense under subsection (a) or paragraph

16 (1) of this subsection continues until the alien is discov17 ered within the United States by immigration officers.

18 ‘‘(f) For purposes of this section, the term ‘attempts

19 to enter’ refers to the general intent of the alien to enter

20 the United States and does not refer to the intent of the

21 alien to violate the law.’’.

22 SEC. 204. REENTRY OF REMOVED ALIENS.

23 Section 276 of the Immigration and Nationality Act

24 (8 U.S.C. 1326) is amended—

25 (1) in subsection (a)—


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1 (A) in paragraph (2), by striking all that

2 follows ‘‘United States’’ and inserting a comma;

3 (B) in the matter following paragraph (2),

4 by striking ‘‘imprisoned not more than 2

5 years,’’ and insert ‘‘imprisoned for a term of

6 not less than 1 year and not more than 2

7 years,’’;

8 (C) by adding at the end the following: ‘‘It

9 shall be an affirmative defense to an offense

10 under this subsection that (A) prior to an

11 alien’s reembarkation at a place outside the

12 United States or an alien’s application for ad13 mission from foreign contiguous territory, the

14 Secretary of Homeland Security has expressly

15 consented to the alien’s reapplying for admis16 sion; or (B) with respect to an alien previously

17 denied admission and removed, such alien was

18 not required to obtain such advance consent

19 under this Act or any prior Act.’’;

20 (2) in subsection (b)—

21 (A) in paragraph (1), by striking ‘‘impris22 oned not more than 10 years,’’ and insert ‘‘im23 prisoned for a term of not less than 5 years and

24 not more than 10 years,’’;


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1 (B) in paragraph (2), by striking ‘‘impris2 oned not more than 20 years,’’ and insert ‘‘im3 prisoned for a term of not less than 10 years

4 and not more than 20 years,’’;

5 (C) in paragraph (3), by striking ‘‘. or’’

6 and inserting ‘‘; or’’;

7 (D) in paragraph (4), by striking ‘‘impris8 oned for not more than 10 years,’’ and insert

9 ‘‘imprisoned for a term of not less than 5 years

10 and not more than 10 years,’’; and

11 (E) by adding at the end the following:

12 ‘‘The prior convictions in paragraphs (1) and

13 (2) are elements of enhanced crimes and the

14 penalties under such paragraphs shall apply

15 only where the conviction (or convictions) that

16 form the basis for the additional penalty are al17 leged in the indictment or information and are

18 proven beyond a reasonable doubt at trial or

19 admitted by the defendant in pleading guilty.

20 Any admissible evidence may be used to show

21 that the prior conviction is a qualifying crime

22 and the criminal trial for a violation of either

23 such paragraph shall not be bifurcated.’’;


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1 (3) in subsections (b)(3), (b)(4), and (c), by

2 striking ‘‘Attorney General’’ and inserting ‘‘Sec3 retary of Homeland Security’’ each place it appears;

4 (4) in subsection (c), by striking ‘‘242(h)(2)’’

5 and inserting ‘‘241(a)(4)’’; and

6 (5) by adding at the end the following new sub7 section:

8 ‘‘(e) For purposes of this section, the term ‘attempts

9 to enter’ refers to the general intent of the alien to enter

10 the United States and does not refer to the intent of the

11 alien to violate the law.’’.

12 SEC. 205. MANDATORY SENTENCING RANGES FOR PERSONS

13 AIDING OR ASSISTING CERTAIN REENTERING

14 ALIENS.

15 Section 277 of the Immigration and Nationality Act

16 (8 U.S.C. 1327) is amended—

17 (1) by striking ‘‘Any person’’ and inserting ‘‘(a)

18 Subject to subsection (b), any person’’; and

19 (2) by adding at the end the following:

20 ‘‘(b)(1) Any person who knowingly aids or assists any

21 alien violating section 276(b) to reenter the United States,

22 or who connives or conspires with any person or persons

23 to allow, procure, or permit any such alien to reenter the

24 United States, shall be fined under title 18, United States


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1 Code, imprisoned for a term imposed under paragraph (2),

2 or both.

3 ‘‘(2) The term of imprisonment imposed under para4 graph (1) shall be within the range to which the reentering

5 alien is subject under section 276(b).’’.

6 SEC. 206. PROHIBITING CARRYING OR USING A FIREARM

7 DURING AND IN RELATION TO AN ALIEN

8 SMUGGLING CRIME.

9 Section 924(c) of title 18, United States Code, is

10 amended—

11 (1) in paragraphs (1)(A) and (1)(D)(ii), by in12 serting ‘‘, alien smuggling crime,’’ after ‘‘crime of vi13 olence’’ each place it appears;

14 (2) by redesignating paragraph (4) as subpara15 graph (5); and

16 (3) by inserting after paragraph (3) the fol17 lowing new paragraph:

18 ‘‘(4) For purposes of this subsection, the term ‘alien

19 smuggling crime’ means any felony punishable under sec20 tion 274(a), 277, or 278 of the Immigration and Nation21 ality Act (8 U.S.C. 1324(a), 1327, or 1328).’’.

22 SEC. 207. CLARIFYING CHANGES.

23 (a) EXCLUSION BASED ON FALSE CLAIM OF NA24 TIONALITY.—


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1 (1) IN GENERAL.—Section 212(a)(6)(C)(ii) of

2 the Immigration and Nationality Act (8 U.S.C.

3 1182(a)(6)(C)(ii)) is amended—

4 (A) in the heading, by inserting ‘‘OR NA5 TIONALITY’’ after ‘‘CITIZENSHIP’’; and

6 (B) by inserting ‘‘or national’’ after ‘‘cit7 izen’’ each place it appears.

8 (2) EFFECTIVE DATE.—The amendments made

9 by paragraph (1) shall take effect on the date of the

10 enactment of this Act and shall apply to acts occur11 ring before, on, or after such date.

12 (b) SHARING OF INFORMATION.—Section 290(b) of

13 such Act (8 U.S.C. 1360(b)) is amended—

14 (1) by inserting ‘‘, or as to any person seeking

15 any benefit or privilege under the immigration

16 laws,’’ after ‘‘United States’’;

17 (2) by striking ‘‘Service’’ and inserting ‘‘Sec18 retary of Homeland Security’’; and

19 (3) by striking ‘‘Attorney General’’ and insert20 ing ‘‘Secretary’’.

21 (c) EXCEPTIONS AUTHORITY.—Section

22 212(a)(3)(B)(ii) of such Act (8 U.S.C. 1182(a)(3)(B)(ii))

23 is amended by striking ‘‘Subclause (VII)’’ and inserting

24 ‘‘Subclause (IX)’’.


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1 SEC. 208. VOLUNTARY DEPARTURE REFORM.

2 (a) ENCOURAGING ALIENS TO DEPART VOLUN3 TARILY.—

4 (1) AUTHORITY.—Subsection (a) of section

5 240B of the Immigration and Nationality Act (8

6 U.S.C. 1229c) is amended—

7 (A) by amending paragraph (1) to read as

8 follows:

9 ‘‘(1) IN LIEU OF REMOVAL PROCEEDINGS.—The

10 Secretary of Homeland Security may permit an alien

11 voluntarily to depart the United States at the alien’s

12 own expense under this subsection, in lieu of being

13 subject to proceedings under section 240, if the alien

14 is not described in section 237(a)(2)(A)(iii) or sec15 tion 237(a)(4).’’;

16 (B) by striking paragraph (3);

17 (C) by redesignating paragraph (2) as

18 paragraph (3);

19 (D) by inserting after paragraph (1) the

20 following new paragraph:

21 ‘‘(2) PRIOR TO THE CONCLUSION OF REMOVAL

22 PROCEEDINGS.—After removal proceedings under

23 section 240 are initiated, the Attorney General may

24 permit an alien voluntarily to depart the United

25 States at the alien’s own expense under this sub26 section, prior to the conclusion of such proceedings


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1 before an immigration judge, if the alien is not de2 scribed in section 237(a)(2)(A)(iii) or section

3 237(a)(4).’’; and

4 (E) in paragraph (4), by striking ‘‘para5 graph (1)’’ and inserting ‘‘paragraphs (1) and

6 (2)’’.

7 (2) VOLUNTARY DEPARTURE PERIOD.—Such

8 section is further amended—

9 (A) in subsection (a)(3), as redesignated

10 by paragraph (1)(C)—

11 (i) by amending subparagraph (A) to

12 read as follows:

13 ‘‘(A) IN LIEU OF REMOVAL.—Subject to

14 subparagraph (C), permission to depart volun15 tarily under paragraph (1) shall not be valid for

16 a period exceeding 120 days. The Secretary of

17 Homeland Security may require an alien per18 mitted to depart voluntarily under paragraph

19 (1) to post a voluntary departure bond, to be

20 surrendered upon proof that the alien has de21 parted the United States within the time speci22 fied.’’;

23 (ii) in subparagraph (B), by striking

24 ‘‘subparagraphs (C) and (D)(ii)’’ and in25 serting ‘‘subparagraphs (D) and (E)(ii)’’;


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1 (iii) in subparagraphs (C) and (D), by

2 striking ‘‘subparagraph (B)’’ and inserting

3 ‘‘subparagraph (C)’’ each place it appears;

4 (iv) by redesignating subparagraphs

5 (B), (C), and (D) as subparagraphs (C),

6 (D), and (E), respectively; and

7 (v) by inserting after subparagraph

8 (A) the following new subparagraph:

9 ‘‘(B) PRIOR TO THE CONCLUSION OF RE10 MOVAL PROCEEDINGS.—Permission to depart

11 voluntarily under paragraph (2) shall not be

12 valid for a period exceeding 60 days, and may

13 be granted only after a finding that the alien

14 has established that the alien has the means to

15 depart the United States and intends to do so.

16 An alien permitted to depart voluntarily under

17 paragraph (2) must post a voluntary departure

18 bond, in an amount necessary to ensure that

19 the alien will depart, to be surrendered upon

20 proof that the alien has departed the United

21 States within the time specified. An immigra22 tion judge may waive posting of a voluntary de23 parture bond in individual cases upon a finding

24 that the alien has presented compelling evidence

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1 nancial hardship and the alien has presented

2 credible evidence that such a bond is unneces3 sary to guarantee timely departure.’’; and

4 (B) in subsection (b)(2), by striking ‘‘60

5 days’’ and inserting ‘‘45 days’’.

6 (3) VOLUNTARY DEPARTURE AGREEMENTS.—

7 Subsection (c) of such section is amended to read as

8 follows:

9 ‘‘(c) CONDITIONS ON VOLUNTARY DEPARTURE.—

10 ‘‘(1) VOLUNTARY DEPARTURE AGREEMENT.—

11 Voluntary departure will be granted only as part of

12 an affirmative agreement by the alien. A voluntary

13 departure agreement under subsection (b) shall in14 clude a waiver of the right to any further motion,

15 appeal, application, petition, or petition for review

16 relating to removal or relief or protection from re17 moval.

18 ‘‘(2) CONCESSIONS BY THE SECRETARY.—In

19 connection with the alien’s agreement to depart vol20 untarily under paragraph (1), the Secretary of

21 Homeland Security in the exercise of discretion may

22 agree to a reduction in the period of inadmissibility

23 under subparagraph (A) or (B)(i) of section

24 212(a)(9).


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1 ‘‘(3) FAILURE TO COMPLY WITH AGREEMENT

2 AND EFFECT OF FILING TIMELY APPEAL.—If an

3 alien agrees to voluntary departure under this sec4 tion and fails to depart the United States within the

5 time allowed for voluntary departure or fails to com6 ply with any other terms of the agreement (including

7 a failure to timely post any required bond), the alien

8 automatically becomes ineligible for the benefits of

9 the agreement, subject to the penalties described in

10 subsection (d), and subject to an alternate order of

11 removal if voluntary departure was granted under

12 subsection (a)(2) or (b). However, if an alien agrees

13 to voluntary departure but later files a timely appeal

14 of the immigration judge’s decision granting vol15 untary departure, the alien may pursue the appeal

16 instead of the voluntary departure agreement. Such

17 appeal operates to void the alien’s voluntary depar18 ture agreement and the consequences thereof, but

19 the alien may not again be granted voluntary depar20 ture while the alien remains in the United States.’’.

21 (4) ELIGIBILITY.—Subsection (e) of such sec22 tion is amended to read as follows:

23 ‘‘(e) ELIGIBILITY.—

24 ‘‘(1) PRIOR GRANT OF VOLUNTARY DEPAR25 TURE.—An alien shall not be permitted to depart


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1 voluntarily under this section if the Secretary of

2 Homeland Security or the Attorney General pre3 viously permitted the alien to depart voluntarily.

4 ‘‘(2) ADDITIONAL LIMITATIONS.—The Sec5 retary of Homeland Security may by regulation limit

6 eligibility or impose additional conditions for vol7 untary departure under subsection (a)(1) for any

8 class or classes of aliens. The Secretary or Attorney

9 General may by regulation limit eligibility or impose

10 additional conditions for voluntary departure under

11 subsection (a)(2) or (b) for any class or classes of

12 aliens. Notwithstanding any other provision of law

13 (statutory or nonstatutory), including section 2241

14 of title 28, United States Code, or any other habeas

15 corpus provision, and section 1361 and 1651 of such

16 title, no court may review any regulation issued

17 under this subsection.’’.

18 (b) AVOIDING DELAYS IN VOLUNTARY DEPAR19 TURE.—

20 (1) ALIEN’S OBLIGATION TO DEPART WITHIN

21 THE TIME ALLOWED.—Subsection (c) of section

22 240B of the Immigration and Nationality Act (8

23 U.S.C. 1229c), as amended by subsection (a), is fur24 ther amended by adding at the end the following

25 new paragraph:


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1 ‘‘(4) VOLUNTARY DEPARTURE PERIOD NOT AF2 FECTED.—Except as expressly agreed to by the Sec3 retary of Homeland Security in writing in the exer4 cise of the Secretary’s discretion before the expira5 tion of the period allowed for voluntary departure,

6 no motion, appeal, application, petition, or petition

7 for review shall affect, reinstate, enjoin, delay, stay,

8 or toll the alien’s obligation to depart from the

9 United States during the period agreed to by the

10 alien and the Secretary.’’

11 (2) NO TOLLING.—Subsection (f) of such sec12 tion is amended by adding at the end the following

13 new sentence: ‘‘Notwithstanding any other provision

14 of law (statutory or nonstatutory), including section

15 2241 of title 28, United States Code, or any other

16 habeas corpus provision, and section 1361 and 1651

17 of such title, no court shall have jurisdiction to af18 fect, reinstate, enjoin, delay, stay, or toll the period

19 allowed for voluntary departure under this section.’’.

20 (c) PENALTIES FOR FAILURE TO DEPART VOLUN21 TARILY.—

22 (1) PENALTIES FOR FAILURE TO DEPART.—

23 Subsection (d) of section 240B of the Immigration

24 and Nationality Act (8 U.S.C. 229c) is amended to

25 read as follows:


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1 ‘‘(d) PENALTIES FOR FAILURE TO DEPART.—If an

2 alien is permitted to depart voluntarily under this section

3 and fails voluntarily to depart from the United States

4 within the time period specified or otherwise violates the

5 terms of a voluntary departure agreement, the following

6 provisions apply:

7 ‘‘(1) CIVIL PENALTY.—

8 ‘‘(A) IN GENERAL.—The alien will be liable

9 for a civil penalty of $3,000.

10 ‘‘(B) SPECIFICATION IN ORDER.—The

11 order allowing voluntary departure shall specify

12 the amount of the penalty, which shall be ac13 knowledged by the alien on the record.

14 ‘‘(C) COLLECTION.—If the Secretary of

15 Homeland Security thereafter establishes that

16 the alien failed to depart voluntarily within the

17 time allowed, no further procedure will be nec18 essary to establish the amount of the penalty,

19 and the Secretary may collect the civil penalty

20 at any time thereafter and by whatever means

21 provided by law.

22 ‘‘(D) INELIGIBILITY FOR BENEFITS.—An

23 alien will be ineligible for any benefits under

24 this title until any civil penalty under this sub25 section is paid.


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1 ‘‘(2) INELIGIBILITY FOR RELIEF.—The alien

2 will be ineligible during the time the alien remains

3 in the United States and for a period of 10 years

4 after the alien’s departure for any further relief

5 under this section and sections 240A, 245, 248, and

6 249.

7 ‘‘(3) REOPENING.—

8 ‘‘(A) IN GENERAL.—Subject to subpara9 graph (B), the alien will be ineligible to reopen

10 a final order of removal which took effect upon

11 the alien’s failure to depart, or the alien’s viola12 tion of the conditions for voluntary departure,

13 during the period described in paragraph (2).

14 ‘‘(B) EXCEPTION.—Subparagraph (A)

15 does not preclude a motion to reopen to seek

16 withholding of removal under section 241(b)(3)

17 or protection against torture.

18 The order permitting the alien to depart voluntarily

19 under this section shall inform the alien of the pen20 alties under this subsection.’’.

21 (2) IMPLEMENTATION OF EXISTING STATUTORY

22 PENALTIES.—The Secretary of Homeland Security

23 shall implement regulations to provide for the impo24 sition and collection of penalties for failure to depart


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1 under section 240B(d) of the Immigration and Na2 tionality Act, as amended by paragraph (1).

3 (d) EFFECTIVE DATES.—

4 (1) IN GENERAL.—Except as provided in para5 graph (2), the amendments made by this section

6 shall apply with respect to all orders granting vol7 untary departure under section 240B of the Immi8 gration and Nationality Act (8 U.S.C. 1229c) made

9 on or after the date that is 180 days after the date

10 of the enactment of this Act.

11 (2) EXCEPTION.—The amendment made by

12 subsection (b)(2) shall take effect on the date of the

13 enactment of this Act and shall apply with respect

14 to any petition for review which is entered on or

15 after such date.

16 SEC. 209. DETERRING ALIENS ORDERED REMOVED FROM

17 REMAINING IN THE UNITED STATES UNLAW18 FULLY AND FROM UNLAWFULLY RETURNING

19 TO THE UNITED STATES AFTER DEPARTING

20 VOLUNTARILY.

21 (a) INADMISSIBLE ALIENS.—Paragraph (9) of sec22 tion 212(a) of the Immigration and Nationality Act (8

23 U.S.C. 1182(a)) is amended—


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1 (1) in subparagraph (A)(i), by striking ‘‘within

2 5 years of’’ and inserting ‘‘before, or within 5 years

3 of,’’; and

4 (2) in subparagraph (A)(ii) by striking ‘‘within

5 10 years of’’ and inserting ‘‘before, or within 10

6 years of,’’.

7 (b) FAILURE TO DEPART, APPLY FOR TRAVEL DOC8 UMENTS, OR APPEAR FOR REMOVAL OR CONSPIRACY TO

9 PREVENT OR HAMPER DEPARTURE.—Section 274D of

10 such Act (8 U.S.C. 1324d) is amended—

11 (1) in subsection (a), by striking ‘‘Commis12 sioner’’ and inserting ‘‘Secretary of Homeland Secu13 rity’’; and

14 (2) by adding at the end the following new sub15 section:

16 ‘‘(c) INELIGIBILITY FOR RELIEF.—

17 ‘‘(1) IN GENERAL.—Subject to paragraph (2),

18 unless a timely motion to reopen is granted under

19 section 240(c)(6), an alien described in subsection

20 (a) shall be ineligible for any discretionary relief

21 from removal pursuant to a motion to reopen during

22 the time the alien remains in the United States and

23 for a period of 10 years after the alien’s departure.

24 ‘‘(2) EXCEPTION.—Paragraph (1) does not pre25 clude a motion to reopen to seek withholding of reVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00203 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 moval under section 241(b)(3) or protection against

2 torture.’’.

3 (c) DETERRING ALIENS FROM UNLAWFULLY RE4 TURNING TO THE UNITED STATES AFTER DEPARTING

5 VOLUNTARILY.—Section 275(a) of such Act (8 U.S.C.

6 1325(a)) is amended by inserting ‘‘or following an order

7 of voluntary departure’’ after ‘‘a subsequent commission

8 of any such offense’’.

9 (d) EFFECTIVE DATES.—

10 (1) IN GENERAL.—The amendments made by

11 subsections (a) and (b) shall take effect on the date

12 of the enactment of this Act with respect to aliens

13 who are subject to a final order of removal, whether

14 the removal order was entered before, on, or after

15 such date.

16 (2) VOLUNTARY DEPARTURE.—The amendment

17 made by subsection (c) shall take effect on the date

18 of the enactment of this Act and shall apply with re19 spect to conduct occurring on or after such date.


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1 TITLE III—BORDER SECURITY

2 COOPERATION AND EN3 FORCEMENT

4 SEC. 301. JOINT STRATEGIC PLAN FOR UNITED STATES

5 BORDER SURVEILLANCE AND SUPPORT.

6 (a) IN GENERAL.—The Secretary of Homeland Secu7 rity and the Secretary of Defense shall develop a joint

8 strategic plan to use the authorities provided to the Sec9 retary of Defense under chapter 18 of title 10, United

10 States Code, to increase the availability and use of Depart11 ment of Defense equipment, including unmanned aerial

12 vehicles, tethered aerostat radars, and other surveillance

13 equipment, to assist with the surveillance activities of the

14 Department of Homeland Security conducted at or near

15 the international land and maritime borders of the United

16 States.

17 (b) REPORT.—Not later than six months after the

18 date of the enactment of this Act, the Secretary of Home19 land Security and the Secretary of Defense shall submit

20 to Congress a report containing—

21 (1) a description of the use of Department of

22 Defense equipment to assist with the surveillance by

23 the Department of Homeland Security of the inter24 national land and maritime borders of the United

25 States;


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1 (2) the joint strategic plan developed pursuant

2 to subsection (a);

3 (3) a description of the types of equipment and

4 other support to be provided by the Department of

5 Defense under the joint strategic plan during the

6 one-year period beginning after submission of the re7 port under this subsection; and

8 (4) a description of how the Department of

9 Homeland Security and the Department of Defense

10 are working with the Department of Transportation

11 on safety and airspace control issues associated with

12 the use of unmanned aerial vehicles in the National

13 Airspace System.

14 (c) RULE OF CONSTRUCTION.—Nothing in this sec15 tion shall be construed as altering or amending the prohi16 bition on the use of any part of the Army or the Air Force

17 as a posse comitatus under section 1385 of title 18,

18 United States Code.

19 SEC. 302. BORDER SECURITY ON PROTECTED LAND.

20 (a) IN GENERAL.—The Secretary of Homeland Secu21 rity, in consultation with the Secretary of the Interior,

22 shall evaluate border security vulnerabilities on land di23 rectly adjacent to the international land border of the

24 United States under the jurisdiction of the Department

25 of the Interior related to the prevention of the entry of


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1 terrorists, other unlawful aliens, narcotics, and other con2 traband into the United States.

3 (b) SUPPORT FOR BORDER SECURITY NEEDS.—

4 Based on the evaluation conducted pursuant to subsection

5 (a), the Secretary of Homeland Security shall provide ap6 propriate border security assistance on land directly adja7 cent to the international land border of the United States

8 under the jurisdiction of the Department of the Interior,

9 its bureaus, and tribal entities.

10 SEC. 303. BORDER SECURITY THREAT ASSESSMENT AND IN11 FORMATION SHARING TEST AND EVALUA12 TION EXERCISE.

13 Not later than one year after the date of the enact14 ment of this Act, the Secretary of Homeland Security shall

15 design and carry out a national border security exercise

16 for the purposes of—

17 (1) involving officials from Federal, State, terri18 torial, local, tribal, and international governments

19 and representatives from the private sector;

20 (2) testing and evaluating the capacity of the

21 United States to anticipate, detect, and disrupt

22 threats to the integrity of United States borders;

23 and


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1 (3) testing and evaluating the information shar2 ing capability among Federal, State, territorial,

3 local, tribal, and international governments.

4 SEC. 304. BORDER SECURITY ADVISORY COMMITTEE.

5 (a) ESTABLISHMENT OF COMMITTEE.—Not later

6 than one year after the date of the enactment of this Act,

7 the Secretary of Homeland Security shall establish an ad8 visory committee to be known as the Border Security Ad9 visory Committee (in this section referred to as the ‘‘Com10 mittee’’).

11 (b) DUTIES.—The Committee shall advise the Sec12 retary on issues relating to border security and enforce13 ment along the international land and maritime border of

14 the United States.

15 (c) MEMBERSHIP.—The Secretary shall appoint

16 members to the Committee from the following:

17 (1) State and local government representatives

18 from States located along the international land and

19 maritime borders of the United States.

20 (2) Community representatives from such

21 States.

22 (3) Tribal authorities in such States.


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1 SEC. 305. PERMITTED USE OF HOMELAND SECURITY

2 GRANT FUNDS FOR BORDER SECURITY AC3 TIVITIES.

4 (a) REIMBURSEMENT.—The Secretary of Homeland

5 Security may allow the recipient of amounts under a cov6 ered grant to use those amounts to reimburse itself for

7 costs it incurs in carrying out any activity that—

8 (1) relates to the enforcement of Federal laws

9 aimed at preventing the unlawful entry of persons or

10 things into the United States, including activities

11 such as detecting or responding to such an unlawful

12 entry or providing support to another entity relating

13 to preventing such an unlawful entry;

14 (2) is usually a Federal duty carried out by a

15 Federal agency; and

16 (3) is carried out under agreement with a Fed17 eral agency.

18 (b) USE OF PRIOR YEAR FUNDS.—Subsection (a)

19 shall apply to all covered grant funds received by a State,

20 local government, or Indian tribe at any time on or after

21 October 1, 2001.

22 (c) COVERED GRANTS.—For purposes of subsection

23 (a), the term ‘‘covered grant’’ means grants provided by

24 the Department of Homeland Security to States, local gov25 ernments, or Indian tribes administered under the fol26 lowing programs:


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1 (1) STATE HOMELAND SECURITY GRANT PRO2 GRAM.—The State Homeland Security Grant Pro3 gram of the Department, or any successor to such

4 grant program.

5 (2) URBAN AREA SECURITY INITIATIVE.—The

6 Urban Area Security Initiative of the Department,

7 or any successor to such grant program.

8 (3) LAW ENFORCEMENT TERRORISM PREVEN9 TION PROGRAM.—The Law Enforcement Terrorism

10 Prevention Program of the Department, or any suc11 cessor to such grant program.

12 SEC. 306. CENTER OF EXCELLENCE FOR BORDER SECU13 RITY.

14 (a) ESTABLISHMENT.—The Secretary of Homeland

15 Security shall establish a university-based Center of Excel16 lence for Border Security following the merit-review proc17 esses and procedures and other limitations that have been

18 established for selecting and supporting University Pro19 grams Centers of Excellence.

20 (b) ACTIVITIES OF THE CENTER.—The Center shall

21 prioritize its activities on the basis of risk to address the

22 most significant threats, vulnerabilities, and consequences

23 posed by United States borders and border control sys24 tems. The activities shall include the conduct of research,

25 the examination of existing and emerging border security


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1 technology and systems, and the provision of education,

2 technical, and analytical assistance for the Department of

3 Homeland Security to effectively secure the borders.

4 SEC. 307. SENSE OF CONGRESS REGARDING COOPERATION

5 WITH INDIAN NATIONS.

6 It is the sense of Congress that—

7 (1) the Department of Homeland Security

8 should strive to include as part of a National Strat9 egy for Border Security recommendations on how to

10 enhance Department cooperation with sovereign In11 dian Nations on securing our borders and preventing

12 terrorist entry, including, specifically, the Depart13 ment should consider whether a Tribal Smart Bor14 der working group is necessary and whether further

15 expansion of cultural sensitivity training, as exists in

16 Arizona with the Tohono O’odham Nation, should be

17 expanded elsewhere; and

18 (2) as the Department of Homeland Security

19 develops a National Strategy for Border Security, it

20 should take into account the needs and missions of

21 each agency that has a stake in border security and

22 strive to ensure that these agencies work together

23 cooperatively on issues involving Tribal lands.


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1 TITLE IV—DETENTION AND

2 REMOVAL

3 SEC. 401. MANDATORY DETENTION FOR ALIENS APPRE4 HENDED AT OR BETWEEN PORTS OF ENTRY.

5 (a) IN GENERAL.—Beginning on October 1, 2006, an

6 alien who is attempting to illegally enter the United States

7 and who is apprehended at a United States port of entry

8 or along the international land and maritime border of the

9 United States shall be detained until removed or a final

10 decision granting admission has been determined, unless

11 the alien—

12 (1) is permitted to withdraw an application for

13 admission under section 235(a)(4) of the Immigra14 tion and Nationality Act (8 U.S.C. 1225(a)(4)) and

15 immediately departs from the United States pursu16 ant to such section; or

17 (2) is paroled into the United States by the

18 Secretary of Homeland Security for urgent humani19 tarian reasons or significant public benefit in accord20 ance with section 212(d)(5)(A) of such Act (8

21 U.S.C. 1182(d)(5)(A)).

22 (b) REQUIREMENTS DURING INTERIM PERIOD.—Be23 ginning 60 days after the date of the enactment of this

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1 section (a) may be released with a notice to appear only

2 if—

3 (1) the Secretary of Homeland Security deter4 mines, after conducting all appropriate background

5 and security checks on the alien, that the alien does

6 not pose a national security risk; and

7 (2) the alien provides a bond of not less than

8 $5,000.

9 (c) RULES OF CONSTRUCTION.—

10 (1) ASYLUM AND REMOVAL.—Nothing in this

11 section shall be construed as limiting the right of an

12 alien to apply for asylum or for relief or deferral of

13 removal based on a fear of persecution.

14 (2) TREATMENT OF CERTAIN ALIENS.—The

15 mandatory detention requirement in subsection (a)

16 does not apply to any alien who is a native or citizen

17 of a country in the Western Hemisphere with whose

18 government the United States does not have full dip19 lomatic relations.

20 SEC. 402. EXPANSION AND EFFECTIVE MANAGEMENT OF

21 DETENTION FACILITIES.

22 Subject to the availability of appropriations, the Sec23 retary of Homeland Security shall fully utilize—


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1 (1) all available detention facilities operated or

2 contracted by the Department of Homeland Secu3 rity; and

4 (2) all possible options to cost effectively in5 crease available detention capacities, including the

6 use of temporary detention facilities, the use of

7 State and local correctional facilities, private space,

8 and secure alternatives to detention.

9 SEC. 403. ENHANCING TRANSPORTATION CAPACITY FOR

10 UNLAWFUL ALIENS.

11 (a) IN GENERAL.—The Secretary of Homeland Secu12 rity is authorized to enter into contracts with private enti13 ties for the purpose of providing secure domestic transport

14 of aliens who are apprehended at or along the inter15 national land or maritime borders from the custody of

16 United States Customs and Border Protection to deten17 tion facilities and other locations as necessary.

18 (b) CRITERIA FOR SELECTION.—Notwithstanding

19 any other provision of law, to enter into a contract under

20 paragraph (1), a private entity shall submit an application

21 to the Secretary at such time, in such manner, and con22 taining such information as the Secretary may require.

23 The Secretary shall select from such applications those en24 tities which offer, in the determination of the Secretary,

25 the best combination of service, cost, and security.


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1 SEC. 404. DENIAL OF ADMISSION TO NATIONALS OF COUN2 TRY DENYING OR DELAYING ACCEPTING

3 ALIEN.

4 Section 243(d) of the Immigration and Nationality

5 Act (8 U.S.C. 1253(d)) is amended to read as follows:

6 ‘‘(d) DENIAL OF ADMISSION TO NATIONALS OF

7 COUNTRY DENYING OR DELAYING ACCEPTING ALIEN.—

8 Whenever the Secretary of Homeland Security determines

9 that the government of a foreign country has denied or

10 unreasonably delayed accepting an alien who is a citizen,

11 subject, national, or resident of that country after the

12 alien has been ordered removed, the Secretary, after con13 sultation with the Secretary of State, may deny admission

14 to any citizen, subject, national, or resident of that coun15 try until the country accepts the alien who was ordered

16 removed.’’.

17 SEC. 405. REPORT ON FINANCIAL BURDEN OF REPATRI18 ATION.

19 Not later than October 31 of each year, the Secretary

20 of Homeland Security shall submit to the Secretary of

21 State and Congress a report that details the cost to the

22 Department of Homeland Security of repatriation of un23 lawful aliens to their countries of nationality or last habit24 ual residence, including details relating to cost per coun25 try. The Secretary shall include in each such report the


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1 recommendations of the Secretary to more cost effectively

2 repatriate such aliens.

3 SEC. 406. TRAINING PROGRAM.

4 Not later than six months after the date of the enact5 ment of this Act, the Secretary of Homeland Security—

6 (1) review and evaluate the training provided to

7 Border Patrol agents and port of entry inspectors

8 regarding the inspection of aliens to determine

9 whether an alien is referred for an interview by an

10 asylum officer for a determination of credible fear;

11 (2) based on the review and evaluation de12 scribed in paragraph (1), take necessary and appro13 priate measures to ensure consistency in referrals by

14 Border Patrol agents and port of entry inspectors to

15 asylum officers for determinations of credible fear.

16 SEC. 407. EXPEDITED REMOVAL.

17 (a) IN GENERAL.—Section 235(b)(1)(A)(iii) of the

18 Immigration and Nationality Act (8 U.S.C.

19 1225(b)(1)(A)(iii)) is amended—

20 (1) in subclause (I), by striking ‘‘Attorney Gen21 eral’’ and inserting ‘‘Secretary of Homeland Secu22 rity’’ each place it appears; and

23 (2) by adding at the end the following new sub24 clause:


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1 ‘‘(III) EXCEPTION.—Notwith2 standing subclauses (I) and (II), the

3 Secretary of Homeland Security shall

4 apply clauses (i) and (ii) of this sub5 paragraph to any alien (other than an

6 alien described in subparagraph (F))

7 who is not a national of a country

8 contiguous to the United States, who

9 has not been admitted or paroled into

10 the United States, and who is appre11 hended within 100 miles of an inter12 national land border of the United

13 States and within 14 days of entry.’’.

14 (b) EXCEPTIONS.—Section 235(b)(1)(F) of the Im15 migration and Nationality Act (8 U.S.C. 1225(b)(1)(F))

16 is amended by striking ‘‘who arrives by aircraft at a port

17 of entry’’ and inserting ‘‘, and who arrives by aircraft at

18 a port of entry or who is present in the United States

19 and arrived in any manner at or between a port of entry’’.

20 (c) EFFECTIVE DATE.—The amendments made by

21 this section shall take effect on the date of the enactment

22 of this Act and shall apply to all aliens apprehended on

23 or after such date.


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1 TITLE V—EFFECTIVE ORGANIZA2 TION OF BORDER SECURITY

3 AGENCIES

4 SEC. 501. ENHANCED BORDER SECURITY COORDINATION

5 AND MANAGEMENT.

6 The Secretary of Homeland Security shall ensure full

7 coordination of border security efforts among agencies

8 within the Department of Homeland Security, including

9 United States Immigration and Customs Enforcement,

10 United States Customs and Border Protection, and

11 United States Citizenship and Immigration Services, and

12 shall identify and remedy any failure of coordination or

13 integration in a prompt and efficient manner. In par14 ticular, the Secretary of Homeland Security shall—

15 (1) oversee and ensure the coordinated execu16 tion of border security operations and policy;

17 (2) establish a mechanism for sharing and co18 ordinating intelligence information and analysis at

19 the headquarters and field office levels pertaining to

20 counter-terrorism, border enforcement, customs and

21 trade, immigration, human smuggling, human traf22 ficking, and other issues of concern to both United

23 States Immigration and Customs Enforcement and

24 United States Customs and Border Protection;


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1 (3) establish Department of Homeland Security

2 task forces (to include other Federal, State, Tribal

3 and local law enforcement agencies as appropriate)

4 as necessary to better coordinate border enforcement

5 and the disruption and dismantling of criminal orga6 nizations engaged in cross-border smuggling, money

7 laundering, and immigration violations;

8 (4) enhance coordination between the border se9 curity and investigations missions within the Depart10 ment by requiring that, with respect to cases involv11 ing violations of the customs and immigration laws

12 of the United States, United States Customs and

13 Border Protection coordinate with and refer all such

14 cases to United States Immigration and Customs

15 Enforcement;

16 (5) examine comprehensively the proper alloca17 tion of the Department’s border security related re18 sources, and analyze budget issues on the basis of

19 Department-wide border enforcement goals, plans,

20 and processes;

21 (6) establish measures and metrics for deter22 mining the effectiveness of coordinated border en23 forcement efforts; and

24 (7) develop and implement a comprehensive

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1 ders of the United States and address the different

2 challenges each border faces by—

3 (A) coordinating all Federal border secu4 rity activities;

5 (B) improving communications and data

6 sharing capabilities within the Department and

7 with other Federal, State, local, tribal, and for8 eign law enforcement agencies on matters relat9 ing to border security; and

10 (C) providing input to relevant bilateral

11 agreements to improve border functions, includ12 ing ensuring security and promoting trade and

13 tourism.

14 SEC. 502. OFFICE OF AIR AND MARINE OPERATIONS.

15 (a) ESTABLISHMENT.—Subtitle C of title IV of the

16 Homeland Security Act of 2002 (6 U.S.C. 201 et seq.)

17 is amended by adding at the end the following new section:

18 ‘‘SEC. 431. OFFICE OF AIR AND MARINE OPERATIONS.

19 ‘‘(a) ESTABLISHMENT.—There is established in the

20 Department an Office of Air and Marine Operations (re21 ferred to in this section as the ‘Office’).

22 ‘‘(b) ASSISTANT SECRETARY.—The Office shall be

23 headed by an Assistant Secretary for Air and Marine Op24 erations who shall be appointed by the President, by and

25 with the advice and consent of the Senate, and who shall


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1 report directly to the Secretary. The Assistant Secretary

2 shall be responsible for all functions and operations of the

3 Office.

4 ‘‘(c) MISSIONS.—

5 ‘‘(1) PRIMARY MISSION.—The primary mission

6 of the Office shall be the prevention of the entry of

7 terrorists, other unlawful aliens, instruments of ter8 rorism, narcotics, and other contraband into the

9 United States.

10 ‘‘(2) SECONDARY MISSION.—The secondary

11 mission of the Office shall be to assist other agencies

12 to prevent the entry of terrorists, other unlawful

13 aliens, instruments of terrorism, narcotics, and other

14 contraband into the United States.

15 ‘‘(d) AIR AND MARINE OPERATIONS CENTER.—

16 ‘‘(1) IN GENERAL.—The Office shall operate

17 and maintain the Air and Marine Operations Center

18 in Riverside, California, or at such other facility of

19 the Office as is designated by the Secretary.

20 ‘‘(2) DUTIES.—The Center shall provide com21 prehensive radar, communications, and control serv22 ices to the Office and to eligible Federal, State, or

23 local agencies (as determined by the Assistant Sec24 retary for Air and Marine Operations), in order to

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1 prehension of individuals attempting to enter United

2 States airspace or coastal waters for the purpose of

3 narcotics trafficking, trafficking of persons, or other

4 terrorist or criminal activity.

5 ‘‘(e) ACCESS TO INFORMATION.—The Office shall en6 sure that other agencies within the Department of Home7 land Security, the Department of Defense, the Depart8 ment of Justice, and such other Federal, State, or local

9 agencies, as may be determined by the Secretary, shall

10 have access to the information gathered and analyzed by

11 the Center.

12 ‘‘(f) REQUIREMENT.—Beginning not later than 180

13 days after the date of the enactment of this Act, the Sec14 retary shall require that all information concerning all

15 aviation activities, including all airplane, helicopter, or

16 other aircraft flights, that are undertaken by the either

17 the Office, United States Immigration and Customs En18 forcement, United States Customs and Border Protection,

19 or any subdivisions thereof, be provided to the Air and

20 Marine Operations Center. Such information shall include

21 the identifiable transponder, radar, and electronic emis22 sions and codes originating and resident aboard the air23 craft or similar asset used in the aviation activity.

24 ‘‘(g) TIMING.—The Secretary shall require the infor25 mation described in subsection (f) to be provided to the


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1 Air and Marine Operations Center in advance of the avia2 tion activity whenever practicable for the purpose of timely

3 coordination and conflict resolution of air missions by the

4 Office, United States Immigration and Customs Enforce5 ment, and United States Customs and Border Protection.

6 ‘‘(h) RULE OF CONSTRUCTION.—Nothing in this sec7 tion shall be construed to alter, impact, diminish, or in

8 any way undermine the authority of the Administrator of

9 the Federal Aviation Administration to oversee, regulate,

10 and control the safe and efficient use of the airspace of

11 the United States.’’.

12 (b) TECHNICAL AND CONFORMING AMENDMENTS.—

13 (1) ADDITIONAL ASSISTANT SECRETARY.—Sec14 tion 103(a)(9) of the Homeland Security Act of

15 2002 (6 U.S.C. 113(a)(9)) is amended by striking

16 ‘‘12’’ and inserting ‘‘13’’.

17 (2) CLERICAL AMENDMENT.—The table of con18 tents in section 1(b) of such Act (6 U.S.C. 101) is

19 amended by inserting after the item relating to sec20 tion 430 the following new item:

‘‘Sec. 431. Office of Air and Marine Operations’’.

21 SEC. 503. SHADOW WOLVES TRANSFER.

22 (a) TRANSFER OF EXISTING UNIT.—Not later that

23 90 days after the date of the enactment of this Act, the

24 Secretary of Homeland Security shall transfer to United

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1 tions (including the personnel, assets, and liabilities attrib2 utable to such functions) of the Customs Patrol Officers

3 unit operating on the Tohono O’odham Indian reservation

4 (commonly known as the ‘‘Shadow Wolves’’ unit).

5 (b) ESTABLISHMENT OF NEW UNITS.—The Sec6 retary is authorized to establish within United States Im7 migration and Customs Enforcement additional units of

8 Customs Patrol Officers in accordance with this section,

9 as appropriate.

10 (c) DUTIES.—The Customs Patrol Officer unit trans11 ferred pursuant to subsection (a), and additional units es12 tablished pursuant to subsection (b), shall operate on In13 dian lands by preventing the entry of terrorists, other un14 lawful aliens, instruments of terrorism, narcotics, and

15 other contraband into the United States.

16 (d) BASIC PAY FOR JOURNEYMAN OFFICERS.—A

17 Customs Patrol Officer in a unit described in this section

18 shall receive equivalent pay as a special agent with similar

19 competencies within United States Immigration and Cus20 toms Enforcement pursuant to the Department of Home21 land Security’s Human Resources Management System

22 established under section 841 of the Homeland Security

23 Act (6 U.S.C. 411).

24 (e) SUPERVISORS.—Each unit described in this sec25 tion shall be supervised by a Chief Customs Patrol Officer,


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1 who shall have the same rank as a resident agent-in2 charge of the Office of Investigations within United States

3 Immigration and Customs Enforcement.

4 TITLE VI—TERRORIST AND

5 CRIMINAL ALIENS

6 SEC. 601. REMOVAL OF TERRORIST ALIENS.

7 (a) EXPANSION OF REMOVAL.—

8 (1) Section 241(b)(3) of the Immigration and

9 Nationality Act (8 U.S.C. 1231(b)(3)) is amended—

10 (A) in subparagraph (A)—

11 (i) by striking ‘‘Attorney General may

12 not’’ and inserting ‘‘Secretary of Home13 land Security may not’’;

14 (ii) by inserting ‘‘or the Secretary’’

15 after ‘‘if the Attorney General’’

16 (B) in subparagraph (B)—

17 (i) by inserting ‘‘or the Secretary of

18 Homeland Security’’ after ‘‘if the Attorney

19 General’’;

20 (ii) by striking ‘‘or’’ in clause (iii);

21 (iii) by striking the period at the end

22 of clause (iv) and inserting ‘‘; or’’;

23 (iv) by inserting after clause (iv) the

24 following new clause:


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1 ‘‘(v) the alien is described in any sub2 clause of section 212(a)(3)(B)(i) or section

3 212(a)(3)(F)’’, unless, in the case only of

4 an alien described in subclause (IV) or

5 (IX) of section 212(a)(3)(B)(i), the Sec6 retary of Homeland Security determines,

7 in the Secretary’s discretion, that there are

8 not reasonable grounds for regarding the

9 alien as a danger to the security of the

10 United States.’’; and

11 (v) in the third sentence, by inserting

12 ‘‘or the Secretary of Homeland Security’’

13 after ‘‘Attorney General’’; and

14 (vi) by striking the last sentence.

15 (2) Section 208(b)(2)(A)(v) of such Act (8

16 U.S.C. 1158(b)(2)(A)(v)) is amended—

17 (A) by striking ‘‘subclause (I), (II), (III),

18 (IV), or (VI)’’ and inserting ‘‘any subclause’’;

19 (B) by striking ‘‘237(a)(4)(B)’’ and insert20 ing ‘‘212(a)(3)(F)’’; and

21 (C) by inserting ‘‘or (IX)’’ after ‘‘subclause

22 (IV)’’.

23 (3) Section 240A(c)(4) of such Act (8 U.S.C.

24 1229b(c)(4)) is amended—


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1 (A) by striking ‘‘inadmissible under’’ and

2 inserting ‘‘described in’’; and

3 (B) by striking ‘‘deportable under’’ and in4 serting ‘‘described in’’.

5 (4) Section 240B(b)(1)(C) of such Act (8

6 U.S.C. 1229c(b)(1)(C)) is amended by striking ‘‘de7 portable under’’ and inserting ‘‘described in’’.

8 (5) Section 249 of such Act (8 U.S.C. 1259))

9 is amended—

10 (A) by striking ‘‘inadmissible under’’ and

11 inserting ‘‘described in’’; and

12 (B) in paragraph (d), by striking ‘‘deport13 able under’’ and inserting ‘‘described in’’.

14 (b) RETROACTIVE APPLICATION.—The amendments

15 made by this section shall take effect on the date of enact16 ment of this Act and sections 208(b)(2)(A), 240A, 240B,

17 241(b)(3), and 249 of the Immigration and Nationality

18 Act, as so amended, shall apply to—

19 (1) all aliens in removal, deportation, or exclu20 sion proceedings;

21 (2) all applications pending on or filed after the

22 date of the enactment of this Act; and

23 (3) with respect to aliens and applications de24 scribed in paragraph (1) or (2), acts and conditions

25 constituting a ground for inadmissibility, excludVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00227 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 ability, deportation, or removal occurring or existing

2 before, on, or after the date of the enactment of this

3 Act.

4 SEC. 602. DETENTION OF DANGEROUS ALIENS.

5 (a) IN GENERAL.—Section 241 of the Immigration

6 and Nationality Act (8 U.S.C. 1231) is amended—

7 (1) in subsection (a), by striking ‘‘Attorney

8 General’’ and inserting ‘‘Secretary of Homeland Se9 curity’’ each place it appears;

10 (2) in subsection (a)(1)(B), by adding after and

11 below clause (iii) the following:

12 ‘‘If, at that time, the alien is not in the custody

13 of the Secretary (under the authority of this

14 Act), the Secretary shall take the alien into cus15 tody for removal, and the removal period shall

16 not begin until the alien is taken into such cus17 tody. If the Secretary transfers custody of the

18 alien during the removal period pursuant to law

19 to another Federal agency or a State or local

20 government agency in connection with the offi21 cial duties of such agency, the removal period

22 shall be tolled, and shall begin anew on the date

23 of the alien’s return to the custody of the Sec24 retary.’’;


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1 (3) by amending clause (ii) of subsection

2 (a)(1)(B) to read as follows:

3 ‘‘(ii) If a court, the Board of Immi4 gration Appeals, or an immigration judge

5 orders a stay of the removal of the alien,

6 the date the stay of removal is no longer

7 in effect.’’;

8 (4) by amending subparagraph (C) of sub9 section (a)(1) to read as follows:

10 ‘‘(C) SUSPENSION OF PERIOD.—The re11 moval period shall be extended beyond a period

12 of 90 days and the alien may remain in deten13 tion during such extended period if the alien

14 fails or refuses to make all reasonable efforts to

15 comply with the removal order, or to fully co16 operate with the Secretary’s efforts to establish

17 the alien’s identity and carry out the removal

18 order, including making timely application in

19 good faith for travel or other documents nec20 essary to the alien’s departure, or conspires or

21 acts to prevent the alien’s removal subject to an

22 order of removal.’’;

23 (5) in subsection (a)(2), by adding at the end

24 the following: ‘‘If a court orders a stay of removal

25 of an alien who is subject to an administratively


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1 final order of removal, the Secretary in the exercise

2 of discretion may detain the alien during the pend3 ency of such stay of removal.’’;

4 (6) in subsection (a)(3), by amending subpara5 graph (D) to read as follows:

6 ‘‘(D) to obey reasonable restrictions on the

7 alien’s conduct or activities, or perform affirma8 tive acts, that the Secretary prescribes for the

9 alien, in order to prevent the alien from ab10 sconding, or for the protection of the commu11 nity, or for other purposes related to the en12 forcement of the immigration laws.’’;

13 (7) in subsection (a)(6), by striking ‘‘removal

14 period and, if released,’’ and inserting ‘‘removal pe15 riod, in the discretion of the Secretary, without any

16 limitations other than those specified in this section,

17 until the alien is removed. If an alien is released, the

18 alien’’;

19 (8) by redesignating paragraph (7) of sub20 section (a) as paragraph (10) and inserting after

21 paragraph (6) of such subsection the following new

22 paragraphs:

23 ‘‘(7) PAROLE.—If an alien detained pursuant to

24 paragraph (6) is an applicant for admission, the

25 Secretary, in the Secretary’s discretion, may parole


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1 the alien under section 212(d)(5) of this Act and

2 may provide, notwithstanding section 212(d)(5), that

3 the alien shall not be returned to custody unless ei4 ther the alien violates the conditions of the alien’s

5 parole or the alien’s removal becomes reasonably

6 foreseeable, provided that in no circumstance shall

7 such alien be considered admitted.

8 ‘‘(8) APPLICATION OF ADDITIONAL RULES FOR

9 DETENTION OR RELEASE OF CERTAIN ALIENS WHO

10 HAVE MADE AN ENTRY.—The procedures described

11 in subsection (j) shall only apply with respect to an

12 alien who—

13 ‘‘(A) was lawfully admitted the most recent

14 time the alien entered the United States or has

15 otherwise effected an entry into the United

16 States, and

17 ‘‘(B) is not detained under paragraph (6).

18 ‘‘(9) JUDICIAL REVIEW.—Without regard to the

19 place of confinement, judicial review of any action or

20 decision pursuant to paragraphs (6), (7), or (8) or

21 subsection (j) shall be available exclusively in habeas

22 corpus proceedings instituted in the United States

23 District Court for the District of Columbia, and only

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1 edies (statutory and regulatory) available to the

2 alien as of right.’’; and

3 (9) by adding at the end the following new sub4 section:

5 ‘‘(j) ADDITIONAL RULES FOR DETENTION OR RE6 LEASE OF CERTAIN ALIENS WHO HAVE MADE AN

7 ENTRY.—

8 ‘‘(1) APPLICATION.—The procedures described

9 in this subsection apply in the case of an alien de10 scribed in subsection (a)(8).

11 ‘‘(2) ESTABLISHMENT OF A DETENTION RE12 VIEW PROCESS FOR ALIENS WHO FULLY COOPERATE

13 WITH REMOVAL.—

14 ‘‘(A) IN GENERAL.—The Secretary shall

15 establish an administrative review process to

16 determine whether the aliens should be detained

17 or released on conditions for aliens who—

18 ‘‘(i) have made all reasonable efforts

19 to comply with their removal orders;

20 ‘‘(ii) have complied with the Sec21 retary’s efforts to carry out the removal

22 orders, including making timely application

23 in good faith for travel or other documents

24 necessary to the alien’s departure, and


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1 ‘‘(iii) have not conspired or acted to

2 prevent removal.

3 ‘‘(B) DETERMINATION.—The Secretary

4 shall make a determination whether to release

5 an alien after the removal period in accordance

6 with paragraphs (3) and (4). The

7 determination—

8 ‘‘(i) shall include consideration of any

9 evidence submitted by the alien and the

10 history of the alien’s efforts to comply with

11 the order of removal, and

12 ‘‘(ii) may include any information or

13 assistance provided by the Department of

14 State or other Federal agency and any

15 other information available to the Sec16 retary pertaining to the ability to remove

17 the alien.

18 ‘‘(3) AUTHORITY TO DETAIN BEYOND THE RE19 MOVAL PERIOD .—

20 ‘‘(A) INITIAL 90 DAY PERIOD.—The Sec21 retary in the exercise of discretion, without any

22 limitations other than those specified in this

23 section, may continue to detain an alien for 90

24 days beyond the removal period (including any


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1 extension of the removal period as provided in

2 subsection (a)(1)(C)).

3 ‘‘(B) EXTENSION.—

4 ‘‘(i) IN GENERAL.—The Secretary in

5 the exercise of discretion, without any limi6 tations other than those specified in this

7 section, may continue to detain an alien

8 beyond the 90 days authorized in subpara9 graph (A) if the conditions described in

10 subparagraph (A), (B), or (C) of para11 graph (4) apply.

12 ‘‘(ii) RENEWAL.—The Secretary may

13 renew a certification under paragraph

14 (4)(A) every six months without limitation,

15 after providing an opportunity for the alien

16 to request reconsideration of the certifi17 cation and to submit documents or other

18 evidence in support of that request. If the

19 Secretary does not renew a certification,

20 the Secretary may not continue to detain

21 the alien under such paragraph.

22 ‘‘(iii) DELEGATION.—Notwithstanding

23 section 103, the Secretary may not dele24 gate the authority to make or renew a cer25 tification described in clause (ii), (iii), or


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1 (v) of paragraph (4)(B) below the level of

2 the Assistant Secretary for Immigration

3 and Customs Enforcement.

4 ‘‘(iv) HEARING.—The Secretary may

5 request that the Attorney General provide

6 for a hearing to make the determination

7 described in clause (iv)(II) of paragraph

8 (4)(B).

9 ‘‘(4) CONDITIONS FOR EXTENSION.—The condi10 tions for continuation of detention are any of the fol11 lowing:

12 ‘‘(A) The Secretary determines that there

13 is a significant likelihood that the alien—

14 ‘‘(i) will be removed in the reasonably

15 foreseeable future; or

16 ‘‘(ii) would be removed in the reason17 ably foreseeable future, or would have been

18 removed, but for the alien’s failure or re19 fusal to make all reasonable efforts to com20 ply with the removal order, or to fully co21 operate with the Secretary’s efforts to es22 tablish the alien’s identity and carry out

23 the removal order, including making timely

24 application in good faith for travel or other

25 documents necessary to the alien’s deparVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00235 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 ture, or conspiracies or acts to prevent re2 moval.

3 ‘‘(B) The Secretary certifies in writing any

4 of the following:

5 ‘‘(i) In consultation with the Secretary

6 of Health and Human Services, the alien

7 has a highly contagious disease that poses

8 a threat to public safety.

9 ‘‘(ii) After receipt of a written rec10 ommendation from the Secretary of State,

11 the release of the alien is likely to have se12 rious adverse foreign policy consequences

13 for the United States.

14 ‘‘(iii) Based on information available

15 to the Secretary (including available infor16 mation from the intelligence community,

17 and without regard to the grounds upon

18 which the alien was ordered removed),

19 there is reason to believe that the release

20 of the alien would threaten the national se21 curity of the United States.

22 ‘‘(iv) The release of the alien will

23 threaten the safety of the community or

24 any person, the conditions of release can25 not reasonably be expected to ensure the


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1 safety of the community or any person,

2 and—

3 ‘‘(I) the alien has been convicted

4 of one or more aggravated felonies de5 scribed in section 101(a)(43)(A) or of

6 one or more crimes identified by the

7 Secretary by regulation, or of one or

8 more attempts or conspiracies to com9 mit any such aggravated felonies or

10 such crimes, for an aggregate term of

11 imprisonment of at least five years; or

12 ‘‘(II) the alien has committed one

13 or more crimes of violence and, be14 cause of a mental condition or person15 ality disorder and behavior associated

16 with that condition or disorder, the

17 alien is likely to engage in acts of vio18 lence in the future.

19 ‘‘(v) The release of the alien will

20 threaten the safety of the community or

21 any person, conditions of release cannot

22 reasonably be expected to ensure the safety

23 of the community or any person, and the

24 alien has been convicted of at least one ag25 gravated felony.


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1 ‘‘(C) Pending a determination under sub2 paragraph (B), so long as the Secretary has ini3 tiated the administrative review process no later

4 than 30 days after the expiration of the removal

5 period (including any extension of the removal

6 period as provided in subsection (a)(1)(C)).

7 ‘‘(5) RELEASE ON CONDITIONS.—If it is deter8 mined that an alien should be released from deten9 tion, the Secretary in the exercise of discretion may

10 impose conditions on release as provided in sub11 section (a)(3).

12 ‘‘(6) REDETENTION.—The Secretary in the ex13 ercise of discretion, without any limitations other

14 than those specified in this section, may again de15 tain any alien subject to a final removal order who

16 is released from custody if the alien fails to comply

17 with the conditions of release or to cooperate in the

18 alien’s removal from the United States, or if, upon

19 reconsideration, the Secretary determines that the

20 alien can be detained under paragraph (1). Para21 graphs (6) through (8) of subsection (a) shall apply

22 to any alien returned to custody pursuant to this

23 paragraph, as if the removal period terminated on

24 the day of the redetention.


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1 ‘‘(7) CERTAIN ALIENS WHO EFFECTED

2 ENTRY.—If an alien has effected an entry into the

3 United States but has neither been lawfully admitted

4 nor physically present in the United States continu5 ously for the 2-year period immediately prior to the

6 commencement of removal proceedings under this

7 Act or deportation proceedings against the alien, the

8 Secretary in the exercise of discretion may decide

9 not to apply subsection (a)(8) and this subsection

10 and may detain the alien without any limitations ex11 cept those imposed by regulation.’’.

12 (b) EFFECTIVE DATE.—The amendments made by

13 subsection (a) shall take effect upon the date of enactment

14 of this Act, and section 241 of the Immigration and Na15 tionality Act, as amended, shall apply to—

16 (1) all aliens subject to a final administrative

17 removal, deportation, or exclusion order that was

18 issued before, on, or after the date of enactment of

19 this Act; and

20 (2) acts and conditions occurring or existing be21 fore, on, or after the date of enactment of this Act.

22 SEC. 603. INCREASE IN CRIMINAL PENALTIES.

23 Section 243 of the Immigration and Nationality Act

24 (8 U.S.C. 1253) is amended—

25 (1) in subsection (a)(1)—


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1 (A) in the matter before subparagraph (A),

2 by inserting ‘‘or 212(a)’’ after ‘‘section

3 237(a)’’; and

4 (B) by striking ‘‘imprisoned not more than

5 four years’’ and inserting ‘‘imprisoned for not

6 less than six months or more than five years’’;

7 and

8 (2) in subsection (b)—

9 (A) by striking ‘‘not more than $1,000’’

10 and inserting ‘‘under title 18, United States

11 Code’’; and

12 (B) by striking ‘‘for not more than one

13 year’’ and inserting ‘‘for not less than six

14 months or more than five years (or 10 years if

15 the alien is a member of any class described in

16 paragraph (1)(E), (2), (3), or (4) of section

17 237(a)’’.

18 SEC. 604. PRECLUDING ADMISSIBILITY OF AGGRAVATED

19 FELONS AND OTHER CRIMINALS.

20 (a) EXCLUSION BASED ON FRAUDULENT DOCU21 MENTATION.—Section 212(a)(2)(A)(i) of the Immigration

22 and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)) is

23 amended—

24 (1) in subclause (I), by striking ‘‘or’’ at the

25 end;


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1 (2) in subclause (II), by adding ‘‘or’’ at the

2 end; and

3 (3) by inserting after subclause (II) the fol4 lowing new subclause:

5 ‘‘(III) a violation (or a conspiracy

6 or attempt to violate) an offense de7 scribed in section 208 of the Social

8 Security Act or section 1028 of title

9 18, United States Code,’’.

10 (b) EXCLUSION BASED ON AGGRAVATED FELONY,

11 UNLAWFUL PROCUREMENT OF CITIZENSHIP, AND

12 CRIMES OF DOMESTIC VIOLENCE.—Section 212(a)(2) of

13 such Act (8 U.S.C. 1182(a)(2)) is amended by adding at

14 the end the following new subparagraphs:

15 ‘‘(J) AGGRAVATED FELONY.—Any alien

16 who is convicted of an aggravated felony at any

17 time is inadmissible.

18 ‘‘(K) UNLAWFUL PROCUREMENT OF CITI19 ZENSHIP.—Any alien convicted of, or who ad20 mits having committed, or who admits commit21 ting acts which constitute the essential elements

22 of, a violation of (or a conspiracy or attempt to

23 violate) subsection (a) or (b) of section 1425 of

24 title 18, United States Code is inadmissible.


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1 ‘‘(L) CRIMES OF DOMESTIC VIOLENCE,

2 STALKING, OR VIOLATION OF PROTECTION OR3 DERS; CRIMES AGAINST CHILDREN.—

4 ‘‘(i) DOMESTIC VIOLENCE, STALKING,

5 OR CHILD ABUSE.—

6 ‘‘(I) IN GENERAL.—Subject to

7 subclause (II), any alien who at any

8 time is convicted of, or who admits

9 having committed, or who admits

10 committing acts which constitute the

11 essential elements of, a crime of do12 mestic violence, a crime of stalking, or

13 a crime of child abuse, child neglect,

14 or child abandonment is inadmissible.

15 ‘‘(II) WAIVER FOR VICTIMS OF

16 DOMESTIC VIOLENCE.—Subclause (I)

17 shall not apply to any alien described

18 in section 237(a)(7)(A).

19 ‘‘(III) CRIME OF DOMESTIC VIO20 LENCE DEFINED.—For purposes of

21 subclause (I), the term ‘crime of do22 mestic violence’ means any crime of

23 violence (as defined in section 16 of

24 title 18, United States Code) against

25 a person committed by a current or


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1 former spouse of the person, by an in2 dividual with whom the person shares

3 a child in common, by an individual

4 who is cohabiting with or has

5 cohabited with the person as a spouse,

6 by an individual similarly situated to

7 a spouse of the person under the do8 mestic or family violence laws of the

9 jurisdiction where the offense occurs,

10 or by any other individual against a

11 person who is protected from that in12 dividual’s acts under the domestic or

13 family violence laws of the United

14 States or any State, Indian tribal gov15 ernment, or unit of local or foreign

16 government.

17 ‘‘(ii) VIOLATORS OF PROTECTION OR18 DERS.—

19 ‘‘(I) IN GENERAL.—Any alien

20 who at any time is enjoined under a

21 protection order issued by a court and

22 whom the court determines has en23 gaged in conduct that violates the por24 tion of a protection order that involves

25 protection against credible threats of


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1 violence, repeated harassment, or bod2 ily injury to the person or person for

3 whom the protection order was issued

4 is inadmissible.

5 ‘‘(II) PROTECTION ORDER DE6 FINED.—For purposes of subclause

7 (I), the term ‘protection order’ means

8 any injunction issued for the purpose

9 of preventing violent or threatening

10 acts of domestic violence, including

11 temporary or final orders issued by

12 civil or criminal courts (other than

13 support or child custody orders or

14 provisions) whether obtained by filing

15 an independent action or as an inde16 pendent order in another pro17 ceeding.’’.

18 (c) WAIVER AUTHORITY.—Section 212(h) of such

19 Act (8 U.S.C. 1182(h)) is amended—

20 (1) by striking ‘‘Attorney General may, in his

21 discretion, waive the application of subparagraphs

22 (A)(i)(I), (B), (D), and (E) of subsection (a)(2)’’

23 and inserting ‘‘The Attorney General or the Sec24 retary of Homeland Security may, in the discretion

25 of the Attorney General or such Secretary, waive the


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1 application of subparagraph (A)(i)(I), (A)(i)(III),

2 (B), (D), (E), (K), and (L) of subsection (a)(2)’’;

3 (2) in paragraphs (1)(A) and (1)(B) and the

4 last sentence, by inserting ‘‘or the Secretary’’ after

5 ‘‘Attorney General’’ each place it appears;

6 (3) in paragraph (2), by striking ‘‘Attorney

7 General may, in his discretion’’ and ‘‘as he’’ and in8 serting ‘‘Attorney General or the Secretary of Home9 land Security, in the discretion of the Attorney Gen10 eral or such Secretary,’’ and ‘‘as the Attorney Gen11 eral or the Secretary’’, respectively;

12 (4) in the second sentence, by striking ‘‘crimi13 nal acts involving torture’’ and inserting ‘‘criminal

14 acts involving torture, or an aggravated felony’’; and

15 (5) in the third sentence, by striking ‘‘if either

16 since the date of such admission the alien has been

17 convicted of an aggravated felony or the alien’’ and

18 inserting ‘‘if since the date of such admission the

19 alien’’.

20 (d) CONSTRUCTION.—The amendments made by this

21 section shall not be construed to create eligibility for relief

22 from removal under section 212(c) of the Immigration and

23 Nationality Act, as in effect before its repeal by section

24 304(b) of the Immigration Reform and Immigrant Re25 sponsibility Act of 1996 (division C of Public Law 104–


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1 208), where such eligibility did not exist before these

2 amendments became effective.

3 (e) EFFECTIVE DATE.—The amendments made by

4 this section shall apply to—

5 (1) any act that occurred before, on, or after

6 the date of the enactment of this Act; and

7 (2) to all aliens who are required to establish

8 admissibility on or after the such date, and in all re9 moval, deportation, or exclusion proceedings that are

10 filed, pending, or reopened, on or after such date.

11 SEC. 605. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT

12 OF STATUS FOR AGGRAVATED FELONIES.

13 (a) IN GENERAL.—Section 209(c) of the Immigration

14 and Nationality Act (8 U.S.C. 1159(c)) is amended by

15 adding at the end the following: ‘‘However, an alien who

16 is convicted of an aggravated felony is not eligible for a

17 waiver or for adjustment of status under this section.’’.

18 (b) EFFECTIVE DATE.—The amendment made by

19 subsection (a) shall apply—

20 (1) to any act that occurred before, on, or after

21 the date of the enactment of this Act; and

22 (2) to all aliens who are required to establish

23 admissibility on or after such date, and in all re24 moval, deportation, or exclusion proceedings that are

25 filed, pending, or reopened, on or after such date.


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1 SEC. 606. REMOVING DRUNK DRIVERS.

2 (a) IN GENERAL.—Section 101(a)(43)(F) of the Im3 migration and Nationality Act (8 U.S.C. 1101(a)(43)(F))

4 is amended by inserting ‘‘, including a third drunk driving

5 conviction, regardless of the States in which the convic6 tions occurred, and regardless of whether the offenses are

7 deemed to be misdemeanors or felonies under State or

8 Federal law,’’ after ‘‘offense)’’.

9 (b) EFFECTIVE DATE.—The amendment made by

10 subsection (a) shall take effect on the date of the enact11 ment of this Act and shall apply to convictions entered

12 before, on, or after such date.

13 SEC. 607. DESIGNATED COUNTY LAW ENFORCEMENT AS14 SISTANCE PROGRAM.

15 (a) DESIGNATED COUNTIES ADJACENT TO THE

16 SOUTHERN BORDER OF THE UNITED STATES DE17 FINED.—In this section, the term ‘‘designated counties

18 adjacent to the southern international border of the

19 United States’’ includes a county any part of which is

20 within 25 miles of the southern international border of the

21 United States.

22 (b) AUTHORITY.—

23 (1) IN GENERAL.—Any Sheriff or coalition or

24 group of Sheriffs from designated counties adjacent

25 to the southern international border of the United

26 States may transfer aliens detained or in the custody


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1 of the Sheriff who are not lawfully present in the

2 United States to appropriate Federal law enforce3 ment officials, and shall be promptly paid for the

4 costs of performing such transfers by the Attorney

5 General for any local or State funds previously ex6 pended or proposed to be spent by that Sheriff or

7 coalition or group of Sheriffs.

8 (2) PAYMENT OF COSTS.—Payment of costs

9 under paragraph (1) shall include payment for costs

10 of detaining, housing, and transporting aliens who

11 are not lawfully present in the United States or who

12 have unlawfully entered the United States at a loca13 tion other than a port of entry and who are taken

14 into custody by the Sheriff.

15 (3) LIMITATION TO FUTURE COSTS.—In no

16 case shall payment be made under this section for

17 costs incurred before the date of the enactment of

18 this Act.

19 (4) ADVANCE PAYMENT OF COSTS.—The Attor20 ney General shall make an advance payment under

21 this section upon a certification of anticipated costs

22 for which payment may be made under this section,

23 but in no case shall such an advance payment cover

24 a period of costs of longer than 3 months.


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1 (c) DESIGNATED COUNTY LAW ENFORCEMENT AC2 COUNT.—

3 (1) SEPARATE ACCOUNT.—Reimbursement or

4 pre-payment under subsection (b) shall be made

5 promptly from funds deposited into a separate ac6 count in the Treasury of the United States to be en7 titled the ‘‘Designated County Law Enforcement Ac8 count’’.

9 (2) AVAILABILITY OF FUNDS.—All deposits into

10 the Designated County Law Enforcement Account

11 shall remain available until expended to the Attorney

12 General to carry out the provisions of this section.

13 (3) PROMPTLY DEFINED.—For purposes of this

14 section, the term ‘‘promptly’’ means within 60 days.

15 (d) FUNDS FOR THE DESIGNATED COUNTY LAW EN16 FORCEMENT ACCOUNT.—Only funds designated, author17 ized, or appropriated by Congress may be deposited or

18 transferred to the Designated County Law Enforcement

19 Account. The Designated County Law Enforcement Ac20 count is authorized to receive up to $100,000,000 per

21 year.

22 (e) USE OF FUNDS.—

23 (1) IN GENERAL.—Funds provided under this

24 section shall be payable directly to participating

25 Sheriff’s offices and may be used for the transfers


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1 described in subsection (b)(1), including the costs of

2 personnel (such as overtime pay and costs for re3 serve deputies), costs of training of such personnel,

4 equipment, and, subject to paragraph (2), the con5 struction, maintenance, and operation of detention

6 facilities to detain aliens who are unlawfully present

7 in the United States. For purposes of this section,

8 an alien who is unlawfully present in the United

9 States shall be deemed to be a Federal prisoner be10 ginning upon determination by Federal law enforce11 ment officials that such alien is unlawfully present

12 in the United States, and such alien shall, upon such

13 determination, be deemed to be in Federal custody.

14 In order for costs to be eligible for payment, the

15 Sheriff making such application shall personally cer16 tify under oath that all costs submitted in the appli17 cation for reimbursement or advance payment meet

18 the requirements of this section and are reasonable

19 and necessary, and such certification shall be subject

20 to all State and Federal laws governing statements

21 made under oath, including the penalties of perjury,

22 removal from office, and prosecution under State

23 and Federal law.

24 (2) LIMITATION.—Not more than 20 percent of

25 the amount of funds provided under this section may


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1 be used for the construction or renovation of deten2 tion or similar facilities.

3 (f) DISPOSITION AND DELIVERY OF DETAINED

4 ALIENS.—All aliens detained or taken into custody by a

5 Sheriff under this section and with respect to whom Fed6 eral law enforcement officials determine are unlawfully

7 present in the United States, shall be immediately deliv8 ered to Federal law enforcement officials. In accordance

9 with subsection (e)(1), an alien who is in the custody of

10 a Sheriff shall be deemed to be a Federal prisoner and

11 in Federal custody.

12 (g) REGULATIONS.—The Attorney General shall

13 issue, on an interim final basis, regulations not later than

14 60 days after the date of the enactment of this Act—

15 (1) governing the distribution of funds under

16 this section for all reasonable and necessary costs

17 and other expenses incurred or proposed to be in18 curred by a Sheriff or coalition or group of Sheriffs

19 under this section; and

20 (2) providing uniform standards that all other

21 Federal law enforcement officials shall follow to co22 operate with such Sheriffs and to otherwise imple23 ment the requirements of this section.

24 (h) EFFECTIVE DATE.—The provisions of this sec25 tion shall take effect on its enactment. The promulgation


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1 of any regulations under subsection (g) is not a necessary

2 precondition to the immediate deployment or work of

3 Sheriffs personnel or corrections officers as authorized by

4 this section. Any reasonable and necessary expenses or

5 costs authorized by this section and incurred by such

6 Sheriffs after the date of the enactment of this Act but

7 prior to the date of the promulgation of such regulations

8 are eligible for reimbursement under the terms and condi9 tions of this section.

10 (i) AUDIT.—All funds paid out under this section are

11 subject to audit by the Inspector General of the Depart12 ment of Justice and abuse or misuse of such funds shall

13 be vigorously investigated and prosecuted to the full extent

14 of Federal law.

15 (j) SUPPLEMENTAL FUNDING.—All funds paid out

16 under this section must supplement, and may not sup17 plant, State or local funds used for the same or similar

18 purposes.

19 SEC. 608. RENDERING INADMISSIBLE AND DEPORTABLE

20 ALIENS PARTICIPATING IN CRIMINAL

21 STREET GANGS; DETENTION; INELIGIBILITY

22 FROM PROTECTION FROM REMOVAL AND

23 ASYLUM.

24 (a) INADMISSIBLE.—Section 212(a)(2) of the Immi25 gration and Nationality Act (8 U.S.C. 1182(a)(2)), as


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1 amended by section 604(b), is further amended by adding

2 at the end the following:

3 ‘‘(M) CRIMINAL STREET GANG PARTICIPA4 TION.—

5 ‘‘(i) IN GENERAL.—Any alien is inad6 missible if the alien has been removed

7 under section 237(a)(2)(F), or if the con8 sular officer or the Secretary of Homeland

9 Security knows, or has reasonable ground

10 to believe that the alien—

11 ‘‘(I) is a member of a criminal

12 street gang and has committed, con13 spired, or threatened to commit, or

14 seeks to enter the United States to

15 engage solely, principally, or inciden16 tally in, a gang crime or any other un17 lawful activity; or

18 ‘‘(II) is a member of a criminal

19 street gang designated under section

20 219A.

21 ‘‘(ii) CRIMINAL STREET GANG DE22 FINED.—For purposes of this subpara23 graph, the term ‘criminal street gang’

24 means a formal or informal group or asso25 ciation of 3 or more individuals, who comVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00253 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 mit 2 or more gang crimes (one of which

2 is a crime of violence, as defined in section

3 16 of title 18, United States Code) in 2 or

4 more separate criminal episodes in relation

5 to the group or association.

6 ‘‘(iii) GANG CRIME DEFINED.—For

7 purposes of this subparagraph, the term

8 ‘gang crime’ means conduct constituting

9 any Federal or State crime, punishable by

10 imprisonment for one year or more, in any

11 of the following categories:

12 ‘‘(I) A crime of violence (as de13 fined in section 16 of title 18, United

14 States Code).

15 ‘‘(II) A crime involving obstruc16 tion of justice, tampering with or re17 taliating against a witness, victim, or

18 informant, or burglary.

19 ‘‘(III) A crime involving the man20 ufacturing, importing, distributing,

21 possessing with intent to distribute, or

22 otherwise dealing in a controlled sub23 stance or listed chemical (as those

24 terms are defined in section 102 of


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1 the Controlled Substances Act (21

2 U.S.C. 802)).

3 ‘‘(IV) Any conduct punishable

4 under section 844 of title 18, United

5 States Code (relating to explosive ma6 terials), subsection (d), (g)(1) (where

7 the underlying conviction is a violent

8 felony (as defined in section

9 924(e)(2)(B) of such title) or is a se10 rious drug offense (as defined in sec11 tion 924(e)(2)(A)), (i), (j), (k), (o),

12 (p), (q), (u), or (x) of section 922 of

13 such title (relating to unlawful acts),

14 or subsection (b), (c), (g), (h), (k), (l),

15 (m), or (n) of section 924 of such title

16 (relating to penalties), section 930 of

17 such title (relating to possession of

18 firearms and dangerous weapons in

19 Federal facilities), section 931 of such

20 title (relating to purchase, ownership,

21 or possession of body armor by violent

22 felons), sections 1028 and 1029 of

23 such title (relating to fraud and re24 lated activity in connection with iden25 tification documents or access deVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00255 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 vices), section 1952 of such title (re2 lating to interstate and foreign travel

3 or transportation in aid of racket4 eering enterprises), section 1956 of

5 such title (relating to the laundering

6 of monetary instruments), section

7 1957 of such title (relating to engag8 ing in monetary transactions in prop9 erty derived from specified unlawful

10 activity), or sections 2312 through

11 2315 of such title (relating to inter12 state transportation of stolen motor

13 vehicles or stolen property).

14 ‘‘(V) Any conduct punishable

15 under section 274 (relating to bring16 ing in and harboring certain aliens),

17 section 277 (relating to aiding or as18 sisting certain aliens to enter the

19 United States), or section 278 (relat20 ing to importation of alien for im21 moral purpose) of this Act.’’.

22 (b) DEPORTABLE.—Section 237(a)(2) of such Act (8

23 U.S.C. 1227(a)(2)) is amended by adding at the end the

24 following:


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1 ‘‘(F) CRIMINAL STREET GANG PARTICIPA2 TION.—

3 ‘‘(i) IN GENERAL.—Any alien is de4 portable who—

5 ‘‘(I) is a member of a criminal

6 street gang and is convicted of com7 mitting, or conspiring, threatening, or

8 attempting to commit, a gang crime;

9 or

10 ‘‘(II) is determined by the Sec11 retary of Homeland Security to be a

12 member of a criminal street gang des13 ignated under section 219A.

14 ‘‘(ii) DEFINITIONS.—For purposes of

15 this subparagraph, the terms ‘criminal

16 street gang’ and ‘gang crime’ have the

17 meaning given such terms in section

18 212(a)(2)(M).’’.

19 (c) DESIGNATION OF CRIMINAL STREET GANGS.—

20 (1) IN GENERAL.—Chapter 2 of title II of the

21 Immigration and Nationality Act (8 U.S.C. 1181 et

22 seq.) is amended by adding at the end the following:

23 ‘‘DESIGNATION OF CRIMINAL STREET GANGS

24 ‘‘SEC. 219A. (a) DESIGNATION.—

25 ‘‘(1) IN GENERAL.—The Attorney General is

26 authorized to designate a group or association as a


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1 criminal street gang in accordance with this sub2 section if the Attorney General finds that the group

3 or association meets the criteria described in section

4 212(a)(2)(M)(ii)(I).

5 ‘‘(2) PROCEDURE.—

6 ‘‘(A) NOTICE.—

7 ‘‘(i) TO CONGRESSIONAL LEADERS.—

8 Seven days before making a designation

9 under this subsection, the Attorney Gen10 eral shall notify the Speaker and Minority

11 Leader of the House of Representatives

12 and the Majority Leader and Minority

13 Leader of the Senate, and the members of

14 the relevant committees of the House of

15 Representatives and the Senate, in writing,

16 of the intent to designate a group or asso17 ciation under this subsection, together with

18 the findings made under paragraph (1)

19 with respect to that group or association,

20 and the factual basis therefor.

21 ‘‘(ii) PUBLICATION IN FEDERAL REG22 ISTER.—The Attorney shall publish the

23 designation in the Federal Register seven

24 days after providing the notification under

25 clause (i).


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1 ‘‘(B) EFFECT OF DESIGNATION.—

2 ‘‘(i) A designation under this sub3 section shall take effect upon publication

4 under subparagraph (A)(ii).

5 ‘‘(ii) Any designation under this sub6 section shall cease to have effect upon an

7 Act of Congress disapproving such des8 ignation.

9 ‘‘(3) RECORD.—In making a designation under

10 this subsection, the Attorney General shall create an

11 administrative record.

12 ‘‘(4) PERIOD OF DESIGNATION.—

13 ‘‘(A) IN GENERAL.—A designation under

14 this subsection shall be effective for all purposes

15 until revoked under paragraph (5) or (6) or set

16 aside pursuant to subsection (b).

17 ‘‘(B) REVIEW OF DESIGNATION UPON PE18 TITION.—

19 ‘‘(i) IN GENERAL.—The Attorney

20 General shall review the designation of a

21 criminal street gang under the procedures

22 set forth in clauses (iii) and (iv) if the des23 ignated gang or association files a petition

24 for revocation within the petition period

25 described in clause (ii).


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1 ‘‘(ii) PETITION PERIOD.—For pur2 poses of clause (i)—

3 ‘‘(I) if the designated gang or as4 sociation has not previously filed a pe5 tition for revocation under this sub6 paragraph, the petition period begins

7 2 years after the date on which the

8 designation was made; or

9 ‘‘(II) if the designated gang or

10 association has previously filed a peti11 tion for revocation under this sub12 paragraph, the petition period begins

13 2 years after the date of the deter14 mination made under clause (iv) on

15 that petition.

16 ‘‘(iii) PROCEDURES.—Any criminal

17 street gang that submits a petition for rev18 ocation under this subparagraph must pro19 vide evidence in that petition that the rel20 evant circumstances described in para21 graph (1) are sufficiently different from

22 the circumstances that were the basis for

23 the designation such that a revocation with

24 respect to the gang is warranted.

25 ‘‘(iv) DETERMINATION.—


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1 ‘‘(I) IN GENERAL.—Not later

2 than 180 days after receiving a peti3 tion for revocation submitted under

4 this subparagraph, the Attorney Gen5 eral shall make a determination as to

6 such revocation.

7 ‘‘(II) PUBLICATION OF DETER8 MINATION.—A determination made by

9 the Attorney General under this

10 clause shall be published in the Fed11 eral Register.

12 ‘‘(III) PROCEDURES.—Any rev13 ocation by the Attorney General shall

14 be made in accordance with para15 graph (6).

16 ‘‘(C) OTHER REVIEW OF DESIGNATION.—

17 ‘‘(i) IN GENERAL.—If in a 5-year pe18 riod no review has taken place under sub19 paragraph (B), the Attorney General shall

20 review the designation of the criminal

21 street gang in order to determine whether

22 such designation should be revoked pursu23 ant to paragraph (6).

24 ‘‘(ii) PROCEDURES.—If a review does

25 not take place pursuant to subparagraph


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1 (B) in response to a petition for revocation

2 that is filed in accordance with that sub3 paragraph, then the review shall be con4 ducted pursuant to procedures established

5 by the Attorney General. The results of

6 such review and the applicable procedures

7 shall not be reviewable in any court.

8 ‘‘(iii) PUBLICATION OF RESULTS OF

9 REVIEW.—The Attorney General shall pub10 lish any determination made pursuant to

11 this subparagraph in the Federal Register.

12 ‘‘(5) REVOCATION BY ACT OF CONGRESS.—The

13 Congress, by an Act of Congress, may block or re14 voke a designation made under paragraph (1).

15 ‘‘(6) REVOCATION BASED ON CHANGE IN CIR16 CUMSTANCES.—

17 ‘‘(A) IN GENERAL.—The Attorney General

18 may revoke a designation made under para19 graph (1) at any time, and shall revoke a des20 ignation upon completion of a review conducted

21 pursuant to subparagraphs (B) and (C) of

22 paragraph (4) if the Attorney General finds

23 that the circumstances that were the basis for

24 the designation have changed in such a manner

25 as to warrant revocation.


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1 ‘‘(B) PROCEDURE.—The procedural re2 quirements of paragraphs (2) and (3) shall

3 apply to a revocation under this paragraph. Any

4 revocation shall take effect on the date specified

5 in the revocation or upon publication in the

6 Federal Register if no effective date is specified.

7 ‘‘(7) EFFECT OF REVOCATION.—The revocation

8 of a designation under paragraph (5) or (6) shall

9 not affect any action or proceeding based on conduct

10 committed prior to the effective date of such revoca11 tion.

12 ‘‘(8) USE OF DESIGNATION IN HEARING.—If a

13 designation under this subsection has become effec14 tive under paragraph (2)(B) an alien in a removal

15 proceeding shall not be permitted to raise any ques16 tion concerning the validity of the issuance of such

17 designation as a defense or an objection at any hear18 ing.

19 ‘‘(b) JUDICIAL REVIEW OF DESIGNATION.—

20 ‘‘(1) IN GENERAL.—Not later than 30 days

21 after publication of the designation in the Federal

22 Register, a group or association designated as a

23 criminal street gang may seek judicial review of the

24 designation in the United States Court of Appeals

25 for the District of Columbia Circuit.


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1 ‘‘(2) BASIS OF REVIEW.—Review under this

2 subsection shall be based solely upon the administra3 tive record.

4 ‘‘(3) SCOPE OF REVIEW.—The Court shall hold

5 unlawful and set aside a designation the court finds

6 to be—

7 ‘‘(A) arbitrary, capricious, an abuse of dis8 cretion, or otherwise not in accordance with

9 law;

10 ‘‘(B) contrary to constitutional right,

11 power, privilege, or immunity;

12 ‘‘(C) in excess of statutory jurisdiction, au13 thority, or limitation, or short of statutory

14 right;

15 ‘‘(D) lacking substantial support in the ad16 ministrative record taken as a whole; or

17 ‘‘(E) not in accord with the procedures re18 quired by law.

19 ‘‘(4) JUDICIAL REVIEW INVOKED.—The pend20 ency of an action for judicial review of a designation

21 shall not affect the application of this section, unless

22 the court issues a final order setting aside the des23 ignation.

24 ‘‘(c) RELEVANT COMMITTEE DEFINED.—As used in

25 this section, the term ‘relevant committees’ means the


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1 Committees on the Judiciary of the House of Representa2 tives and of the Senate.’’.

3 (2) CLERICAL AMENDMENT.—The table of con4 tents of such Act (8 U.S.C. 1101 et seq.) is amend5 ed by inserting after the item relating to section 219

6 the following:

‘‘Sec. 219A. Designation of criminal street gangs’’.

7 (d) MANDATORY DETENTION OF CRIMINAL STREET

8 GANG MEMBERS.—

9 (1) IN GENERAL.—Section 236(c)(1)(D) of the

10 Immigration and Nationality Act (8 U.S.C.

11 1226(c)(1)(D)) is amended—

12 (A) by inserting ‘‘or 212(a)(2)(M)’’ after

13 ‘‘212(a)(3)(B)’’; and

14 (B) by inserting ‘‘or 237(a)(2)(F)’’ before

15 ‘‘237(a)(4)(B)’’.

16 (2) ANNUAL REPORT.—Not later than March 1

17 of each year (beginning 1 year after the date of the

18 enactment of this Act), the Secretary of Homeland

19 Security, after consultation with the appropriate

20 Federal agencies, shall submit a report to the Com21 mittees on the Judiciary of the House of Represent22 atives and of the Senate on the number of aliens de23 tained under the amendments made by paragraph

24 (1).


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1 (3) EFFECTIVE DATE.—This subsection and the

2 amendments made by this subsection are effective as

3 of the date of enactment of this Act and shall apply

4 to aliens detained on or after such date.

5 (e) INELIGIBILITY OF ALIEN STREET GANG MEM6 BERS FROM PROTECTION FROM REMOVAL AND ASY7 LUM.—

8 (1) INAPPLICABILITY OF RESTRICTION ON RE9 MOVAL TO CERTAIN COUNTRIES.—Section

10 241(b)(3)(B) of the Immigration and Nationality

11 Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the

12 matter preceding clause (i), by inserting ‘‘who is de13 scribed in section 212(a)(2)(M)(i) or section

14 237(a)(2)(F)(i) or who is’’ after ‘‘to an alien’’.

15 (2) INELIGIBILITY FOR ASYLUM.—Section

16 208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A))

17 is amended—

18 (A) in clause (v), by striking ‘‘or’’ at the

19 end;

20 (B) by redesignating clause (vi) as clause

21 (vii); and

22 (C) by inserting after clause (v) the fol23 lowing:

24 ‘‘(vi) the alien is described in section

25 212(a)(2)(M)(i) or section 237(a)(2)(F)(i)


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1 (relating to participation in criminal street

2 gangs); or’’.

3 (3) DENIAL OF REVIEW OF DETERMINATION OF

4 INELIGIBILITY FOR TEMPORARY PROTECTED STA5 TUS.—Section 244(c)(2) of such Act (8 U.S.C.

6 1254(c)(2)) is amended by adding at the end the fol7 lowing:

8 ‘‘(C) LIMITATION ON JUDICIAL REVIEW.—

9 There shall be no judicial review of any finding

10 under subparagraph (B) that an alien is in de11 scribed in section 208(b)(2)(A)(vi).’’.

12 (4) EFFECTIVE DATE.—The amendments made

13 by this subsection are effective on the date of enact14 ment of this Act and shall apply to all applications

15 pending on or after such date.

16 (f) EFFECTIVE DATE.—Except as otherwise pro17 vided, the amendments made by this section are effective

18 as of the date of enactment and shall apply to all pending

19 cases in which no final administrative action has been en20 tered.

21 SEC. 609. NATURALIZATION REFORM.

22 (a) BARRING TERRORISTS FROM NATURALIZA23 TION.—Section 316 of the Immigration and Nationality

24 Act (8 U.S.C. 1427) is amended by adding at the end the

25 following new subsection:


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1 ‘‘(g) No person shall be naturalized who the Sec2 retary of Homeland Security determines, in the Sec3 retary’s discretion, to have been at any time an alien de4 scribed in section 212(a)(3) or 237(a)(4). Such determina5 tion may be based upon any relevant information or evi6 dence, including classified, sensitive, or national security

7 information, and shall be binding upon, and unreviewable

8 by, any court exercising jurisdiction under the immigra9 tion laws over any application for naturalization, regard10 less whether such jurisdiction to review a decision or ac11 tion of the Secretary is de novo or otherwise.’’.

12 (b) CONCURRENT NATURALIZATION AND REMOVAL

13 PROCEEDINGS.—The last sentence of section 318 of such

14 Act (8 U.S.C. 1429) is amended—

15 (1) by striking ‘‘shall be considered by the At16 torney General’’ and inserting ‘‘shall be considered

17 by the Secretary of Homeland Security or any

18 court’’;

19 (2) by striking ‘‘pursuant to a warrant of arrest

20 issued under the provisions of this or any other

21 Act:’’ and inserting ‘‘or other proceeding to deter22 mine the applicant’s inadmissibility or deportability,

23 or to determine whether the applicant’s lawful per24 manent resident status should be rescinded, regard25 less of when such proceeding was commenced:’’; and


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1 (3) by striking ‘‘upon the Attorney General’’

2 and inserting ‘‘upon the Secretary of Homeland Se3 curity’’.

4 (c) PENDING DENATURALIZATION OR REMOVAL

5 PROCEEDINGS.—Section 204(b) of such Act (8 U.S.C.

6 1154(b)) is amended by adding at the end the following:

7 ‘‘No petition shall be approved pursuant to this section

8 if there is any administrative or judicial proceeding

9 (whether civil or criminal) pending against the petitioner

10 that could (whether directly or indirectly) result in the pe11 titioner’s denaturalization or the loss of the petitioner’s

12 lawful permanent resident status.’’.

13 (d) CONDITIONAL PERMANENT RESIDENTS.—Sec14 tion 216(e) and section 216A(e) of such Act (8 U.S.C.

15 1186a(e), 1186b(e)) are each amended by inserting before

16 the period at the end the following: ‘‘, if the alien has had

17 the conditional basis removed under this section’’.

18 (e) DISTRICT COURT JURISDICTION.—Section 336(b)

19 of such Act (8 U.S.C. 1447(b)) is amended to read as

20 follows:

21 ‘‘(b) If there is a failure to render a final administra22 tive decision under section 335 before the end of the 180-

23 day period after the date on which the Secretary of Home24 land Security completes all examinations and interviews

25 conducted under such section, as such terms are defined


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1 by the Secretary pursuant to regulations, the applicant

2 may apply to the district court for the district in which

3 the applicant resides for a hearing on the matter. Such

4 court shall only have jurisdiction to review the basis for

5 delay and remand the matter to the Secretary for the Sec6 retary’s determination on the application.’’.

7 (f) CONFORMING AMENDMENTS.—Section 310(c) of

8 such Act (8 U.S.C. 1421(c)) is amended—

9 (1) by inserting ‘‘, no later than the date that

10 is 120 days after the Secretary’s final determina11 tion’’ before ‘‘seek’’; and

12 (2) by striking the second sentence and insert13 ing the following: ‘‘The burden shall be upon the pe14 titioner to show that the Secretary’s denial of the

15 application was not supported by facially legitimate

16 and bona fide reasons. Except in a proceeding under

17 section 340, notwithstanding any other provision of

18 law (statutory or nonstatutory), including section

19 2241 of title 28, United States Code, or any other

20 habeas corpus provision, and sections 1361 and

21 1651 of such title, no court shall have jurisdiction

22 to determine, or to review a determination of the

23 Secretary made at any time regarding, for purposes

24 of an application for naturalization, whether an alien

25 is a person of good moral character, whether an


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1 alien understands and is attached to the principles

2 of the Constitution of the United States, or whether

3 an alien is well disposed to the good order and hap4 piness of the United States.’’.

5 (g) EFFECTIVE DATE.—The amendments made by

6 this section shall take effect on the date of the enactment

7 of this Act, shall apply to any act that occurred before,

8 on, or after such date, and shall apply to any application

9 for naturalization or any other case or matter under the

10 immigration laws pending on, or filed on or after, such

11 date.

12 SEC. 610. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE

13 ON CRIMINAL OR SECURITY GROUNDS.

14 (a) IN GENERAL.—Section 238(b) of the Immigra15 tion and Nationality Act (8 U.S.C. 1228(b)) is amended–

16 (1) in paragraph (1)—

17 (A) by striking ‘‘Attorney General’’ and in18 serting ‘‘Secretary of Homeland Security in the

19 exercise of discretion’’; and

20 (B) by striking ‘‘set forth in this sub21 section or’’ and inserting ‘‘set forth in this sub22 section, in lieu of removal proceedings under’’;

23 (2) in paragraph (3), by striking ‘‘paragraph

24 (1) until 14 calendar days’’ and inserting ‘‘para25 graph (1) or (3) until 7 calendar days’’;


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1 (3) by striking ‘‘Attorney General’’ each place

2 it appears in paragraphs (3) and (4) and inserting

3 ‘‘Secretary of Homeland Security’’;

4 (4) in paragraph (5)—

5 (A) by striking ‘‘described in this section’’

6 and inserting ‘‘described in paragraph (1) or

7 (2)’’; and

8 (B) by striking ‘‘the Attorney General may

9 grant in the Attorney General’s discretion’’ and

10 inserting ‘‘the Secretary of Homeland Security

11 or the Attorney General may grant, in the dis12 cretion of the Secretary or Attorney General, in

13 any proceeding’’;

14 (5) by redesignating paragraphs (3), (4), and

15 (5) as paragraphs (4), (5), and (6), respectively; and

16 (6) by inserting after paragraph (2) the fol17 lowing new paragraph:

18 ‘‘(3) The Secretary of Homeland Security in

19 the exercise of discretion may determine inadmis20 sibility under section 212(a)(2) (relating to criminal

21 offenses) and issue an order of removal pursuant to

22 the procedures set forth in this subsection, in lieu of

23 removal proceedings under section 240, with respect

24 to an alien who

25 ‘‘(A) has not been admitted or paroled;


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1 ‘‘(B) has not been found to have a credible

2 fear of persecution pursuant to the procedures

3 set forth in section 235(b)(1)(B); and

4 ‘‘(C) is not eligible for a waiver of inadmis5 sibility or relief from removal.’’.

6 (b) EFFECTIVE DATE.—The amendments made by

7 subsection (a) shall take effect on the date of the enact8 ment of this Act but shall not apply to aliens who are

9 in removal proceedings under section 240 of the Immigra10 tion and Nationality Act as of such date

11 SEC. 611. TECHNICAL CORRECTION FOR EFFECTIVE DATE

12 IN CHANGE IN INADMISSIBILITY FOR TER13 RORISTS UNDER REAL ID ACT.

14 Effective as if included in the enactment of Public

15 Law 109–13, section 103(d)(1) of the REAL ID Act of

16 2005 (division B of such Public Law) is amended by in17 serting ‘‘, deportation, and exclusion’’ after ‘‘removal’’.

18 SEC. 612. BAR TO GOOD MORAL CHARACTER.

19 (a) IN GENERAL.—Section 101(f) of the Immigration

20 and Nationality Act (8 U.S.C. 1101(f)) is amended—

21 (1) by inserting after paragraph (1) the fol22 lowing new paragraph:

23 ‘‘(2) one who the Secretary of Homeland Secu24 rity or the Attorney General determines, in the

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1 torney General, to have been at any time an alien

2 described in section 212(a)(3) or section 237(a)(4),

3 which determination may be based upon any rel4 evant information or evidence, including classified,

5 sensitive, or national security information, and which

6 shall be binding upon any court regardless of the ap7 plicable standard of review;’’;

8 (2) in paragraph (8), by inserting ‘‘, regardless

9 whether the crime was classified as an aggravated

10 felony at the time of conviction,’’ after ‘‘(as defined

11 in subsection (a)(43))’’; and

12 (3) by striking the sentence following paragraph

13 (9) and inserting the following: ‘‘The fact that any

14 person is not within any of the foregoing classes

15 shall not preclude a discretionary finding for other

16 reasons that such a person is or was not of good

17 moral character. The Secretary and the Attorney

18 General shall not be limited to the applicant’s con19 duct during the period for which good moral char20 acter is required, but may take into consideration as

21 a basis for determination the applicant’s conduct

22 and acts at any time.’’.

23 (b) AGGRAVATED FELONY EFFECTIVE DATE.—Sec24 tion 509(b) of the Immigration Act of 1990 (Public Law

25 101–649), as amended by section 306(a)(7) of the MisVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00274 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 cellaneous and Technical Immigration and Naturalization

2 Amendments of 1991 (Public Law 102–232) is amended

3 to read as follows:

4 ‘‘(b) EFFECTIVE DATE.—The amendment made by

5 subsection (a) shall take effect on November 29, 1990,

6 and shall apply to convictions occurring before, on, or

7 after such date.’’.

8 (c) TECHNICAL CORRECTION TO THE INTELLIGENCE

9 REFORM ACT.—Effective as if included in the enactment

10 of the Intelligence Reform and Terrorism Prevention Act

11 of 2004 (Public Law 108–458), section 5504(2) of such

12 Act is amended by striking ‘‘adding at the end’’ and in13 serting ‘‘inserting immediately after paragraph (8)’’.

14 (d) EFFECTIVE DATES.—The amendments made by

15 subsections (a) and (b) shall take effect on the date of

16 the enactment of this Act, shall apply to any act that oc17 curred before, on, or after such date, and shall apply to

18 any application for naturalization or any other benefit or

19 relief or any other case or matter under the immigration

20 laws pending on, or filed on or after, such date.

21 SEC. 613. STRENGTHENING DEFINITIONS OF ‘‘AGGRAVATED

22 FELONY’’ AND ‘‘CONVICTION’’.

23 (a) IN GENERAL.—Section 101(a) of the Immigra24 tion and Nationality Act (8 U.S.C. 1101(a)) is amended—


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1 (1) by amending subparagraph (A) of para2 graph (43) to read as follows:

3 ‘‘(A) murder, manslaughter, homicide,

4 rape, or any sexual abuse of a minor, whether

5 or not the minority of the victim is established

6 by evidence contained in the record of convic7 tion or by evidence extrinsic to the record of

8 conviction;’’; and

9 (2) in paragraph (48)(A), by inserting after and

10 below clause (ii) the following:

11 ‘‘Any reversal, vacatur, expungement, or modification to

12 a conviction, sentence, or conviction record that was grant13 ed to ameliorate the consequences of the conviction, sen14 tence, or conviction record, or was granted for rehabilita15 tive purposes, or for failure to advise the alien of the immi16 gration consequences of a guilty plea or a determination

17 of guilt, shall have no effect on the immigration con18 sequences resulting from the original conviction. The alien

19 shall have the burden of demonstrating that the reversal,

20 vacatur, expungement, or modification was not granted to

21 ameliorate the consequences of the conviction, sentence,

22 or conviction record, for rehabilitative purposes, or for fail23 ure to advise the alien of the immigration consequences

24 of a guilty plea or a determination of guilt.’’.


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1 (b) EFFECTIVE DATE.—The amendments made by

2 subsection (a) shall apply to any act that occurred before,

3 on, or after the date of the enactment of this Act and

4 shall apply to any matter under the immigration laws

5 pending on, or filed on or after, such date.

6 SEC. 614. DEPORTABILITY FOR CRIMINAL OFFENSES.

7 (a) IN GENERAL.—Section 237(a)(3)(B) of the Im8 migration and Nationality Act (8 U.S.C. 1227(a)(3)(B))

9 is amended—

10 (1) in clause (ii), by striking ‘‘or’’ at the end;

11 (2) in clause (iii), by inserting ‘‘or’’ at the end;

12 and

13 (3) by inserting after clause (iii) the following

14 new clause:

15 ‘‘(iv) of a violation of, or an attempt

16 or a conspiracy to violate, subsection (a) or

17 (b) of section 1425 of title 18, United

18 States Code,’’.

19 (b) DEPORTABILITY; CRIMINAL OFFENSES.—Section

20 237(a)(2) of such Act (8 U.S.C. 1227(a)(2)), as amended

21 by section 608(b), is amended by adding at the end the

22 following new subparagraph:

23 ‘‘(G) SOCIAL SECURITY AND IDENTIFICA24 TION FRAUD.—Any alien who at any time after

25 admission is convicted of a violation of (or a


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1 conspiracy or attempt to violate) an offense de2 scribed in section 208 of the Social Security Act

3 or section 1028 of title 18, United States Code

4 is deportable.’’.

5 (c) EFFECTIVE DATE.—The amendments made by

6 this section shall apply to any act that occurred before,

7 on, or after the date of the enactment of this Act, and

8 to all aliens who are required to establish admissibility on

9 or after such date and in all removal, deportation, or ex10 clusion proceedings that are filed, pending, or reopened,

11 on or after such date.

12 TITLE VII—EMPLOYMENT

13 ELIGIBILITY VERIFICATION

14 SEC. 701. EMPLOYMENT ELIGIBILITY VERIFICATION SYS15 TEM.

16 (a) IN GENERAL.—Section 274A(b) of the Immigra17 tion and Nationality Act (8 U.S.C. 1324a(b)) is amended

18 by adding at the end the following:

19 ‘‘(7) EMPLOYMENT ELIGIBILITY VERIFICATION

20 SYSTEM.—

21 ‘‘(A) IN GENERAL.—The Secretary of

22 Homeland Security shall establish and admin23 ister a verification system through which the

24 Secretary (or a designee of the Secretary, which

25 may be a nongovernmental entity)—


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1 ‘‘(i) responds to inquiries made by

2 persons at any time through a toll-free

3 telephone line and other toll-free electronic

4 media concerning an individual’s identity

5 and whether the individual is authorized to

6 be employed; and

7 ‘‘(ii) maintains records of the inquir8 ies that were made, of verifications pro9 vided (or not provided), and of the codes

10 provided to inquirers as evidence of their

11 compliance with their obligations under

12 this section.

13 ‘‘(B) INITIAL RESPONSE.—The verification

14 system shall provide verification or a tentative

15 nonverification of an individual’s identity and

16 employment eligibility within 3 working days of

17 the initial inquiry. If providing verification or

18 tentative nonverification, the verification system

19 shall provide an appropriate code indicating

20 such verification or such nonverification.

21 ‘‘(C) SECONDARY VERIFICATION PROCESS

22 IN CASE OF TENTATIVE NONVERIFICATION.—In

23 cases of tentative nonverification, the Secretary

24 shall specify, in consultation with the Commis25 sioner of Social Security, an available secondary


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1 verification process to confirm the validity of in2 formation provided and to provide a final ver3 ification or nonverification within 10 working

4 days after the date of the tentative nonverifica5 tion. When final verification or nonverification

6 is provided, the verification system shall provide

7 an appropriate code indicating such verification

8 or nonverification.

9 ‘‘(D) DESIGN AND OPERATION OF SYS10 TEM.—The verification system shall be designed

11 and operated—

12 ‘‘(i) to maximize its reliability and

13 ease of use by persons and other entities

14 consistent with insulating and protecting

15 the privacy and security of the underlying

16 information;

17 ‘‘(ii) to respond to all inquiries made

18 by such persons and entities on whether

19 individuals are authorized to be employed

20 and to register all times when such inquir21 ies are not received;

22 ‘‘(iii) with appropriate administrative,

23 technical, and physical safeguards to pre24 vent unauthorized disclosure of personal

25 information; and


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1 ‘‘(iv) to have reasonable safeguards

2 against the system’s resulting in unlawful

3 discriminatory practices based on national

4 origin or citizenship status, including—

5 ‘‘(I) the selective or unauthorized

6 use of the system to verify eligibility;

7 ‘‘(II) the use of the system prior

8 to an offer of employment; or

9 ‘‘(III) the exclusion of certain in10 dividuals from consideration for em11 ployment as a result of a perceived

12 likelihood that additional verification

13 will be required, beyond what is re14 quired for most job applicants.

15 ‘‘(E) RESPONSIBILITIES OF THE COMMIS16 SIONER OF SOCIAL SECURITY.—As part of the

17 verification system, the Commissioner of Social

18 Security, in consultation with the Secretary of

19 Homeland Security (and any designee of the

20 Secretary selected to establish and administer

21 the verification system), shall establish a reli22 able, secure method, which, within the time pe23 riods specified under subparagraphs (B) and

24 (C), compares the name and social security ac25 count number provided in an inquiry against


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1 such information maintained by the Commis2 sioner in order to validate (or not validate) the

3 information provided regarding an individual

4 whose identity and employment eligibility must

5 be confirmed, the correspondence of the name

6 and number, and whether the individual has

7 presented a social security account number that

8 is not valid for employment. The Commissioner

9 shall not disclose or release social security infor10 mation (other than such verification or nonver11 ification) except as provided for in this section

12 or section 205(c)(2)(I) of the Social Security

13 Act.

14 ‘‘(F) RESPONSIBILITIES OF THE SEC15 RETARY OF HOMELAND SECURITY.—(i) As part

16 of the verification system, the Secretary of

17 Homeland Security (in consultation with any

18 designee of the Secretary selected to establish

19 and administer the verification system), shall

20 establish a reliable, secure method, which, with21 in the time periods specified under subpara22 graphs (B) and (C), compares the name and

23 alien identification or authorization number

24 which are provided in an inquiry against such

25 information maintained by the Secretary in


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1 order to validate (or not validate) the informa2 tion provided, the correspondence of the name

3 and number, and whether the alien is author4 ized to be employed in the United States.

5 ‘‘(ii) When a single employer has sub6 mitted to the verification system pursuant to

7 paragraph (3)(A) the identical social security

8 account number in more than one instance, or

9 when multiple employers have submitted to the

10 verification system pursuant to such paragraph

11 the identical social security account number, in

12 a manner which indicates the possible fraudu13 lent use of that number, the Secretary of

14 Homeland Security shall conduct an investiga15 tion in order to ensure that no fraudulent use

16 of a social security account number has taken

17 place. If the Secretary has selected a designee

18 to establish and administer the verification sys19 tem, the designee shall notify the Secretary

20 when a single employer has submitted to the

21 verification system pursuant to paragraph

22 (3)(A) the identical social security account

23 number in more than one instance, or when

24 multiple employers have submitted to the ver25 ification system pursuant to such paragraph the


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1 identical social security account number, in a

2 manner which indicates the possible fraudulent

3 use of that number. The designee shall also

4 provide the Secretary with all pertinent infor5 mation, including the name and address of the

6 employer or employers who submitted the rel7 evant social security account number, the rel8 evant social security account number submitted

9 by the employer or employers, and the relevant

10 name and date of birth of the employee sub11 mitted by the employer or employers.

12 ‘‘(G) UPDATING INFORMATION.—The

13 Commissioner of Social Security and the Sec14 retary of Homeland Security shall update their

15 information in a manner that promotes the

16 maximum accuracy and shall provide a process

17 for the prompt correction of erroneous informa18 tion, including instances in which it is brought

19 to their attention in the secondary verification

20 process described in subparagraph (C).

21 ‘‘(H) LIMITATION ON USE OF THE VER22 IFICATION SYSTEM AND ANY RELATED SYS23 TEMS.—

24 ‘‘(i) IN GENERAL.—Notwithstanding

25 any other provision of law, nothing in this


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1 paragraph shall be construed to permit or

2 allow any department, bureau, or other

3 agency of the United States Government to

4 utilize any information, data base, or other

5 records assembled under this paragraph

6 for any other purpose other than as pro7 vided for.

8 ‘‘(ii) NO NATIONAL IDENTIFICATION

9 CARD.—Nothing in this paragraph shall be

10 construed to authorize, directly or indi11 rectly, the issuance or use of national iden12 tification cards or the establishment of a

13 national identification card.

14 ‘‘(I) FEDERAL TORT CLAIMS ACT.—If an

15 individual alleges that the individual would not

16 have been dismissed from a job but for an error

17 of the verification mechanism, the individual

18 may seek compensation only through the mech19 anism of the Federal Tort Claims Act, and in20 junctive relief to correct such error. No class

21 action may be brought under this subpara22 graph.

23 ‘‘(J) PROTECTION FROM LIABILITY FOR

24 ACTIONS TAKEN ON THE BASIS OF INFORMA25 TION.—No person or entity shall be civilly or


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1 criminally liable for any action taken in good

2 faith reliance on information provided through

3 the employment eligibility verification mecha4 nism established under this paragraph.’’.

5 (b) REPEAL OF PROVISION RELATING TO EVALUA6 TIONS AND CHANGES IN EMPLOYMENT VERIFICATION.—

7 Section 274A(d) (8 U.S.C. 1324a(d)) is repealed.

8 SEC. 702. EMPLOYMENT ELIGIBILITY VERIFICATION PROC9 ESS.

10 Section 274A of the Immigration and Nationality Act

11 (8 U.S.C. 1324a) is amended—

12 (1) in subsection (a)(3), by inserting ‘‘(A)’’

13 after ‘‘DEFENSE.—’’, and by adding at the end the

14 following:

15 ‘‘(B) FAILURE TO SEEK AND OBTAIN VERIFICA16 TION.—In the case of a person or entity in the

17 United States that hires, or continues to employ, an

18 individual, or recruits or refers an individual for em19 ployment, the following requirements apply:

20 ‘‘(i) FAILURE TO SEEK VERIFICATION.—

21 ‘‘(I) IN GENERAL.—If the person or

22 entity has not made an inquiry, under the

23 mechanism established under subsection

24 (b)(7), seeking verification of the identity

25 and work eligibility of the individual, by


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1 not later than the end of 3 working days

2 (as specified by the Secretary of Homeland

3 Security) after the date of the hiring, the

4 date specified in subsection (b)(8)(B) for

5 previously hired individuals, or before the

6 recruiting or referring commences, the de7 fense under subparagraph (A) shall not be

8 considered to apply with respect to any

9 employment, except as provided in sub10 clause (II).

11 ‘‘(II) SPECIAL RULE FOR FAILURE OF

12 VERIFICATION MECHANISM.—If such a per13 son or entity in good faith attempts to

14 make an inquiry in order to qualify for the

15 defense under subparagraph (A) and the

16 verification mechanism has registered that

17 not all inquiries were responded to during

18 the relevant time, the person or entity can

19 make an inquiry until the end of the first

20 subsequent working day in which the ver21 ification mechanism registers no non22 responses and qualify for such defense.

23 ‘‘(ii) FAILURE TO OBTAIN VERIFICA24 TION.—If the person or entity has made the in25 quiry described in clause (i)(I) but has not reVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00287 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 ceived an appropriate verification of such iden2 tity and work eligibility under such mechanism

3 within the time period specified under sub4 section (b)(7)(B) after the time the verification

5 inquiry was received, the defense under sub6 paragraph (A) shall not be considered to apply

7 with respect to any employment after the end of

8 such time period.’’;

9 (2) by amending subparagraph (A) of sub10 section (b)(1) to read as follows:

11 ‘‘(A) IN GENERAL.—The person or entity

12 must attest, under penalty of perjury and on a

13 form designated or established by the Secretary

14 by regulation, that it has verified that the indi15 vidual is not an unauthorized alien by—

16 ‘‘(i) obtaining from the individual the

17 individual’s social security account number

18 and recording the number on the form (if

19 the individual claims to have been issued

20 such a number), and, if the individual does

21 not attest to United States citizenship

22 under paragraph (2), obtaining such iden23 tification or authorization number estab24 lished by the Department of Homeland Se25 curity for the alien as the Secretary of


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1 Homeland Security may specify, and re2 cording such number on the form; and

3 ‘‘(ii)(I) examining a document de4 scribed in subparagraph (B); or (II) exam5 ining a document described in subpara6 graph (C) and a document described in

7 subparagraph (D).

8 A person or entity has complied with the re9 quirement of this paragraph with respect to ex10 amination of a document if the document rea11 sonably appears on its face to be genuine, rea12 sonably appears to pertain to the individual

13 whose identity and work eligibility is being veri14 fied, and, if the document bears an expiration

15 date, that expiration date has not elapsed. If an

16 individual provides a document (or combination

17 of documents) that reasonably appears on its

18 face to be genuine, reasonably appears to per19 tain to the individual whose identity and work

20 eligibility is being verified, and is sufficient to

21 meet the first sentence of this paragraph, noth22 ing in this paragraph shall be construed as re23 quiring the person or entity to solicit the pro24 duction of any other document or as requiring

25 the individual to produce another document.’’;


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1 (3) in subsection (b)(1)(D)—

2 (A) in clause (i), by striking ‘‘or such other

3 personal identification information relating to

4 the individual as the Secretary finds, by regula5 tion, sufficient for purposes of this section’’;

6 and

7 (B) in clause (ii), by inserting before the

8 period ‘‘and that contains a photograph of the

9 individual’’;

10 (4) in subsection (b)(2), by adding at the end

11 the following: ‘‘The individual must also provide that

12 individual’s social security account number (if the

13 individual claims to have been issued such a num14 ber), and, if the individual does not attest to United

15 States citizenship under this paragraph, such identi16 fication or authorization number established by the

17 Department of Homeland Security for the alien as

18 the Secretary may specify.’’; and

19 (5) by amending paragraph (3) of subsection

20 (b) to read as follows:

21 ‘‘(3) RETENTION OF VERIFICATION FORM AND

22 VERIFICATION.—

23 ‘‘(A) IN GENERAL.—After completion of

24 such form in accordance with paragraphs (1)

25 and (2), the person or entity must—


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1 ‘‘(i) retain the form and make it avail2 able for inspection by officers of the De3 partment of Homeland Security, the Spe4 cial Counsel for Immigration-Related Un5 fair Employment Practices, or the Depart6 ment of Labor during a period beginning

7 on the date of the hiring, recruiting, or re8 ferral of the individual or the date of the

9 completion of verification of a previously

10 hired individual and ending—

11 ‘‘(I) in the case of the recruiting

12 or referral of an individual, three

13 years after the date of the recruiting

14 or referral;

15 ‘‘(II) in the case of the hiring of

16 an individual, the later of—

17 ‘‘(aa) three years after the

18 date of such hiring; or

19 ‘‘(bb) one year after the

20 date the individual’s employment

21 is terminated; and

22 ‘‘(III) in the case of the verifica23 tion of a previously hired individual,

24 the later of—


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1 ‘‘(aa) three years after the

2 date of the completion of verifica3 tion; or

4 ‘‘(bb) one year after the

5 date the individual’s employment

6 is terminated;

7 ‘‘(ii) make an inquiry, as provided in

8 paragraph (7), using the verification sys9 tem to seek verification of the identity and

10 employment eligibility of an individual, by

11 not later than the end of 3 working days

12 (as specified by the Secretary of Homeland

13 Security) after the date of the hiring or in

14 the case of previously hired individuals, the

15 date specified in subsection (b)(8)(B), or

16 before the recruiting or referring com17 mences; and

18 ‘‘(iii) may not commence recruitment

19 or referral of the individual until the per20 son or entity receives verification under

21 subparagraph (B)(i) or (B)(iii).

22 ‘‘(B) VERIFICATION.—

23 ‘‘(i) VERIFICATION RECEIVED.—If the

24 person or other entity receives an appro25 priate verification of an individual’s idenVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00292 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

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1 tity and work eligibility under the verifica2 tion system within the time period speci3 fied, the person or entity shall record on

4 the form an appropriate code that is pro5 vided under the system and that indicates

6 a final verification of such identity and

7 work eligibility of the individual.

8 ‘‘(ii) TENTATIVE NONVERIFICATION

9 RECEIVED.—If the person or other entity

10 receives a tentative nonverification of an

11 individual’s identity or work eligibility

12 under the verification system within the

13 time period specified, the person or entity

14 shall so inform the individual for whom the

15 verification is sought. If the individual does

16 not contest the nonverification within the

17 time period specified, the nonverification

18 shall be considered final. The person or en19 tity shall then record on the form an ap20 propriate code which has been provided

21 under the system to indicate a tentative

22 nonverification. If the individual does con23 test the nonverification, the individual shall

24 utilize the process for secondary verifica25 tion provided under paragraph (7). The


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1 nonverification will remain tentative until a

2 final verification or nonverification is pro3 vided by the verification system within the

4 time period specified. In no case shall an

5 employer terminate employment of an indi6 vidual because of a failure of the individual

7 to have identity and work eligibility con8 firmed under this section until a nonver9 ification becomes final. Nothing in this

10 clause shall apply to a termination of em11 ployment for any reason other than be12 cause of such a failure.

13 ‘‘(iii) FINAL VERIFICATION OR NON14 VERIFICATION RECEIVED.—If a final ver15 ification or nonverification is provided by

16 the verification system regarding an indi17 vidual, the person or entity shall record on

18 the form an appropriate code that is pro19 vided under the system and that indicates

20 a verification or nonverification of identity

21 and work eligibility of the individual.

22 ‘‘(iv) EXTENSION OF TIME.—If the

23 person or other entity in good faith at24 tempts to make an inquiry during the time

25 period specified and the verification system


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1 has registered that not all inquiries were

2 received during such time, the person or

3 entity may make an inquiry in the first

4 subsequent working day in which the ver5 ification system registers that it has re6 ceived all inquiries. If the verification sys7 tem cannot receive inquiries at all times

8 during a day, the person or entity merely

9 has to assert that the entity attempted to

10 make the inquiry on that day for the pre11 vious sentence to apply to such an inquiry,

12 and does not have to provide any addi13 tional proof concerning such inquiry.

14 ‘‘(v) CONSEQUENCES OF NONVER15 IFICATION.—

16 ‘‘(I) TERMINATION OR NOTIFICA17 TION OF CONTINUED EMPLOYMENT.—

18 If the person or other entity has re19 ceived a final nonverification regard20 ing an individual, the person or entity

21 may terminate employment of the in22 dividual (or decline to recruit or refer

23 the individual). If the person or entity

24 does not terminate employment of the

25 individual or proceeds to recruit or


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1 refer the individual, the person or en2 tity shall notify the Secretary of

3 Homeland Security of such fact

4 through the verification system or in

5 such other manner as the Secretary

6 may specify.

7 ‘‘(II) FAILURE TO NOTIFY.—If

8 the person or entity fails to provide

9 notice with respect to an individual as

10 required under subclause (I), the fail11 ure is deemed to constitute a violation

12 of subsection (a)(1)(A) with respect to

13 that individual.

14 ‘‘(vi) CONTINUED EMPLOYMENT

15 AFTER FINAL NONVERIFICATION.—If the

16 person or other entity continues to employ

17 (or to recruit or refer) an individual after

18 receiving final nonverification, a rebuttable

19 presumption is created that the person or

20 entity has violated subsection (a)(1)(A).’’.


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1 SEC. 703. EXPANSION OF EMPLOYMENT ELIGIBILITY VER2 IFICATION SYSTEM TO PREVIOUSLY HIRED

3 INDIVIDUALS AND RECRUITING AND REFER4 RING.

5 (a) APPLICATION TO RECRUITING AND REFER6 RING.—Section 274A of the Immigration and Nationality

7 Act (8 U.S.C. 1324a) is amended—

8 (1) in subsection (a)(1)(A), by striking ‘‘for a

9 fee’’;

10 (2) in subsection (a)(1), by amending subpara11 graph (B) to read as follows:

12 ‘‘(B) to hire, continue to employ, or to re13 cruit or refer for employment in the United

14 States an individual without complying with the

15 requirements of subsection (b).’’;

16 (3) in subsection (a)(2) by striking ‘‘after hir17 ing an alien for employment in accordance with

18 paragraph (1),’’ and inserting ‘‘after complying with

19 paragraph (1),’’; and

20 (4) in subsection (a)(3), as amended by section

21 702, is further amended by striking ‘‘hiring’’ and in22 serting ‘‘hiring, employing,’’ each place it appears.

23 (b) EMPLOYMENT ELIGIBILITY VERIFICATION FOR

24 PREVIOUSLY HIRED INDIVIDUALS.—Section 274A(b) of

25 such Act (8 U.S.C. 1324a(b)), as amended by section


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1 701(a), is amended by adding at the end the following new

2 paragraph:

3 ‘‘(8) USE OF EMPLOYMENT ELIGIBILITY VER4 IFICATION SYSTEM FOR PREVIOUSLY HIRED INDIVID5 UALS.—

6 ‘‘(A) ON A VOLUNTARY BASIS.—Beginning

7 on the date that is 2 years after the date of the

8 enactment of the Border Protection,

9 Antiterrorism, and Illegal Immigration Control

10 Act of 2005 and until the date specified in sub11 paragraph (B)(iii), a person or entity may make

12 an inquiry, as provided in paragraph (7), using

13 the verification system to seek verification of

14 the identity and employment eligibility of any

15 individual employed by the person or entity, as

16 long as it is done on a nondiscriminatory basis.

17 ‘‘(B) ON A MANDATORY BASIS.—

18 ‘‘(i) A person or entity described in

19 clause (ii) must make an inquiry as pro20 vided in paragraph (7), using the verifica21 tion system to seek verification of the iden22 tity and employment eligibility of all indi23 viduals employed by the person or entity

24 who have not been previously subject to an

25 inquiry by the person or entity by the date


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1 three years after the date of enactment of

2 the Border Protection, Antiterrorism, and

3 Illegal Immigration Control Act of 2005.

4 ‘‘(ii) A person or entity is described in

5 this clause if it is a Federal, State, or local

6 governmental body (including the Armed

7 Forces of the United States), or if it em8 ploys individuals working in a location that

9 is a Federal, State, or local government

10 building, a military base, a nuclear energy

11 site, a weapon site, an airport, or that con12 tains critical infrastructure (as defined in

13 section 1016(e) of the Critical Infrastruc14 ture Protection Act of 2001 (42 U.S.C.

15 5195c(e))), but only to the extent of such

16 individuals.

17 ‘‘(iii) All persons and entities other

18 than those described in clause (ii) must

19 make an inquiry, as provided in paragraph

20 (7), using the verification system to seek

21 verification of the identity and employment

22 eligibility of all individuals employed by the

23 person or entity who have not been pre24 viously subject to an inquiry by the person

25 or entity by the date six years after the


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1 date of enactment of the Border Protec2 tion, Antiterrorism, and Illegal Immigra3 tion Control Act of 2005.’’.

4 SEC. 704. BASIC PILOT PROGRAM.

5 Section 401(b) of the Illegal Immigration Reform and

6 Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a

7 note) is amended by striking ‘‘at the end of the 11-year

8 period beginning on the first day the pilot program is in

9 effect’’ and inserting ‘‘two years after the enactment of

10 the Border Protection, Antiterrorism, and Illegal Immi11 gration Control Act of 2005’’.

12 SEC. 705. HIRING HALLS.

13 Section 274A(h) of the Immigration and Nationality

14 Act (8 U.S.C. 1324a(h)) is amended by adding at the end

15 the following new paragraph:

16 ‘‘(4) DEFINITION OF RECRUIT OR REFER.—As

17 used in this section, the term ‘refer’ means the act

18 of sending or directing a person or transmitting doc19 umentation or information to another, directly or in20 directly, with the intent of obtaining employment in

21 the United States for such person. Generally, only

22 persons or entities referring for remuneration

23 (whether on a retainer or contingency basis) are in24 cluded in the definition. However, union hiring halls

25 that refer union members or nonunion individuals


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1 who pay union membership dues are included in the

2 definition whether or not they receive remuneration,

3 as are labor service agencies, whether public, private,

4 for-profit, or nonprofit, that refer, dispatch, or oth5 erwise facilitate the hiring of laborers for any period

6 of time by a third party. As used in this section the

7 term ‘recruit’ means the act of soliciting a person,

8 directly or indirectly, and referring the person to an9 other with the intent of obtaining employment for

10 that person. Generally, only persons or entities re11 cruiting for remunerations (whether on a retainer or

12 contingency basis) are included in the definition.

13 However, union hiring halls that refer union mem14 bers or nonunion individuals who pay union member15 ship dues are included in this definition whether or

16 not they receive remuneration, as are labor service

17 agencies, whether public, private, for-profit, or non18 profit that recruit, dispatch, or otherwise facilitate

19 the hiring of laborers for any period of time by a

20 third party.’’.

21 SEC. 706. PENALTIES.

22 Section 274A of the Immigration and Nationality Act

23 (8 U.S.C. 1324a) is amended—

24 (1) in subsection (e)(4)—


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1 (A) in subparagraph (A), in the matter be2 fore clause (i), by inserting ‘‘, subject to para3 graph (10),’’ after ‘‘in an amount’’;

4 (B) in subparagraph (A)(i), by striking

5 ‘‘not less than $250 and not more than

6 $2,000’’ and inserting ‘‘not less than $5,000’’;

7 (C) in subparagraph (A)(ii), by striking

8 ‘‘not less than $2,000 and not more than

9 $5,000’’ and inserting ‘‘not less than $10,000’’;

10 (D) in subparagraph (A)(iii), by striking

11 ‘‘not less than $3,000 and not more than

12 $10,000’’ and inserting ‘‘not less than

13 $25,000’’; and

14 (E) by amending subparagraph (B) to read

15 as follows:

16 ‘‘(B) may require the person or entity to

17 take such other remedial action as is appro18 priate.’’;

19 (2) in subsection (e)(5)—

20 (A) by inserting ‘‘, subject to paragraph

21 (10),’’ after ‘‘in an amount’’;

22 (B) by striking ‘‘$100’’ and inserting

23 ‘‘$1,000’’;

24 (C) by striking ‘‘$1,000’’ and inserting

25 ‘‘$25,000’’;


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1 (D) by striking ‘‘the size of the business of

2 the employer being charged, the good faith of

3 the employer’’ and inserting ‘‘the good faith of

4 the employer being charged’’; and

5 (E) by adding at the end the following sen6 tence: ‘‘Failure by a person or entity to utilize

7 the employment eligibility verification system as

8 required by law, or providing information to the

9 system that the person or entity knows or rea10 sonably believes to be false, shall be treated as

11 a violation of subsection (a)(1)(A).’’;

12 (3) by adding at the end of subsection (e) the

13 following new paragraph:

14 ‘‘(10) MITIGATION OF CIVIL MONEY PENALTIES

15 FOR SMALLER EMPLOYERS.—In the case of imposi16 tion of a civil penalty under paragraph (4)(A) with

17 respect to a violation of subsection (a)(1)(A) or

18 (a)(2) for hiring or continuation of employment by

19 an employer and in the case of imposition of a civil

20 penalty under paragraph (5) for a violation of sub21 section (a)(1)(B) for hiring by an employer, the dol22 lar amounts otherwise specified in the respective

23 paragraph shall be reduced as follows:

24 ‘‘(A) In the case of an employer with an

25 average of fewer than 26 full-time equivalent


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1 employees (as defined by the Secretary of

2 Homeland Security), the amounts shall be re3 duced by 60 percent.

4 ‘‘(B) In the case of an employer with an

5 average of at least 26, but fewer than 101, full6 time equivalent employees (as so defined), the

7 amounts shall be reduced by 40 percent.

8 ‘‘(C) In the case of an employer with an

9 average of at least 101, but fewer than 251,

10 full-time equivalent employees (as so defined),

11 the amounts shall be reduced by 20 percent.

12 The last sentence of paragraph (4) shall apply under

13 this paragraph in the same manner as it applies

14 under such paragraph.’’.

15 (4) by amending paragraph (1) of subsection (f)

16 to read as follows:

17 ‘‘(1) CRIMINAL PENALTY.—Any person or enti18 ty which engages in a pattern or practice of viola19 tions of subsection (a)(1) or (2) shall be fined not

20 more than $50,000 for each unauthorized alien with

21 respect to which such a violation occurs, imprisoned

22 for not less than one year, or both, notwithstanding

23 the provisions of any other Federal law relating to

24 fine levels.’’; and


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1 (5) in subsection (f)(2), by striking ‘‘Attorney

2 General’’ each place it appears and inserting ‘‘Sec3 retary of Homeland Security’’.

4 SEC. 707. REPORT ON SOCIAL SECURITY CARD-BASED EM5 PLOYMENT ELIGIBILITY VERIFICATION.

6 (a) REPORT.—

7 (1) IN GENERAL.—Not later than than 9

8 months after the date of the enactment of this Act,

9 the Commissioner of Social Security, in consultation

10 with the Secretary of Treasury, the Secretary of

11 Homeland Security, and the Attorney General, shall

12 submit a report to Congress that includes an evalua13 tion of the following requirements and changes:

14 (A) A requirement that social security

15 cards that are made of a durable plastic or

16 similar material and that include an encrypted,

17 machine-readable electronic identification strip

18 and a digital photograph of the individual to

19 whom the card is issued, be issued to each indi20 vidual (whether or not a United States citizen)

21 who—

22 (i) is authorized to be employed in the

23 United States;

24 (ii) is seeking employment in the

25 United States; and


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1 (iii) files an application for such card,

2 whether as a replacement of an existing so3 cial security card or as a card issued in

4 connection with the issuance of a new so5 cial security account number.

6 (B) The creation of a unified database to

7 be maintained by the Department of Homeland

8 Security and comprised of data from the Social

9 Security Administration and the Department of

10 Homeland Security specifying the work author11 ization of individuals (including both United

12 States citizens and noncitizens) for the purpose

13 of conducting employment eligibility verifica14 tion.

15 (C) A requirement that all employers verify

16 the employment eligibility of all new hires using

17 the social security cards described in subpara18 graph (A) and a phone, electronic card-reading,

19 or other mechanism to seek verification of em20 ployment eligibility through the use of the uni21 fied database described in subparagraph (B).

22 (2) ITEMS INCLUDED IN REPORT.—The report

23 under paragraph (1) shall include an evaluation of

24 each of the following:


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1 (A) Projected cost, including the cost to

2 the Federal government, State and local govern3 ments, and the private sector.

4 (B) Administrability.

5 (C) Potential effects on—

6 (i) employers;

7 (ii) employees, including employees

8 who are United States citizens as well as

9 those that are not citizens;

10 (iii) tax revenue; and

11 (iv) privacy.

12 (D) The extent to which employer and em13 ployee compliance with immigration laws would

14 be expected to improve.

15 (E) Any other relevant information.

16 (3) ALTERNATIVES.—The report under para17 graph (1) also shall examine any alternatives to

18 achieve the same goals as the requirements and

19 changes described in paragraph (1) but that involve

20 lesser cost, lesser burden on those affected, or great21 er ease of administration.

22 (b) INSPECTOR GENERAL REVIEW.—Not later than

23 3 months after the report is submitted under subsection

24 (a), the Inspector General of the Social Security Adminis25 tration, in consultation with the Inspectors General of the


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1 Department of Treasury, the Department of Homeland

2 Security, and the Department of Justice, shall send to the

3 Congress an evaluation of the such report.

4 SEC. 708. EFFECTIVE DATE.

5 This title and the amendments made by this title

6 shall take effect on the date of enactment of this Act, ex7 cept that the requirements of persons and entities to com8 ply with the employment eligibility verification process

9 takes effect on the date that is two years after such date.

10 TITLE VIII—IMMIGRATION

11 LITIGATION ABUSE REDUCTION

12 SEC. 801. BOARD OF IMMIGRATION APPEALS REMOVAL

13 ORDER AUTHORITY.

14 (a) IN GENERAL.—Section 101(a)(47) of the Immi15 gration and Nationality Act (8 U.S.C. 1101(a)(47)) is

16 amended to read as follows:

17 ‘‘(47)(A) The term ‘order of removal’ means the

18 order of the immigration judge, the Board of Immigration

19 Appeals, or other administrative officer to whom the At20 torney General or the Secretary of Homeland Security has

21 delegated the responsibility for determining whether an

22 alien is removable, concluding that the alien is removable

23 or ordering removal.

24 ‘‘(B) The order described under subparagraph (A)

25 shall become final upon the earliest of—


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1 ‘‘(i) a determination by the Board of Immigra2 tion Appeals affirming such order;

3 ‘‘(ii) the entry by the Board of Immigration Ap4 peals of such order;

5 ‘‘(iii) the expiration of the period in which any

6 party is permitted to seek review of such order by

7 the Board of Immigration Appeals;

8 ‘‘(iv) the entry by an immigration judge of such

9 order, if appeal is waived by all parties; or

10 ‘‘(v) the entry by another administrative officer

11 of such order, at the conclusion of a process as au12 thorized by law other than under section 240.’’.

13 (b) EFFECTIVE DATE.—The amendment made by

14 subsection (a) shall take effect on the date of the enact15 ment of this Act and shall apply to ordered entered before,

16 on, or after such date.

17 SEC. 802. JUDICIAL REVIEW OF VISA REVOCATION.

18 (a) IN GENERAL.—Section 221(i) of the Immigration

19 and Nationality Act (8 U.S.C. 1201(i)) is amended by

20 amending the last sentence to read as follows: ‘‘Notwith21 standing any other provision of law (statutory or non22 statutory), including section 2241 of title 28, United

23 States Code, or any other habeas corpus provision, and

24 sections 1361 and 1651 of such title, a revocation under

25 this subsection may not be reviewed by any court, and no


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1 court shall have jurisdiction to hear any claim arising

2 from, or any challenge to, such a revocation.’’.

3 (b) EFFECTIVE DATE.—The amendment made by

4 subsection (a) shall take effect on the date of the enact5 ment of this Act and shall apply to visa revocations ef6 fected before, on, or after such date.

7 SEC. 803. REINSTATEMENT.

8 (a) IN GENERAL.—Section 241(a)(5) of the Immi9 gration and Nationality Act (8 U.S.C. 1231(a)(5)) is

10 amended to read as follows:

11 ‘‘(5) REINSTATEMENT OF REMOVAL ORDERS

12 AGAINST ALIENS ILLEGALLY REENTERING.—If the

13 Secretary of Homeland Security finds that an alien

14 has entered the United States illegally after having

15 been removed or having departed voluntarily, under

16 an order of removal, deportation, or exclusion, re17 gardless of the date of the original order or the date

18 of the illegal entry—

19 ‘‘(A) the order of removal, deportation, or

20 exclusion is reinstated from its original date

21 and is not subject to being reopened or re22 viewed;

23 ‘‘(B) the alien is not eligible and may not

24 apply for any relief under this Act, regardless


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1 of the date that an application for such relief

2 may have been filed; and

3 ‘‘(C) the alien shall be removed under the

4 order of removal, deportation, or exclusion at

5 any time after the illegal entry.

6 Reinstatement under this paragraph shall not re7 quire proceedings before an immigration judge under

8 section 240 or otherwise.’’.

9 (b) JUDICIAL REVIEW.—Section 242 of the Immigra10 tion and Nationality Act (8 U.S.C. 1252) is amended by

11 adding at the end the following new subsection:

12 ‘‘(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER

13 SECTION 241(a)(5).—

14 ‘‘(1) IN GENERAL.—Notwithstanding any other

15 provision of law (statutory or nonstatutory), includ16 ing section 2241 of title 28, United States Code, or

17 any other habeas corpus provision, sections 1361

18 and 1651 of such title, or subsection (a)(2)(D) of

19 this section, no court shall have jurisdiction to re20 view any cause or claim arising from or relating to

21 any reinstatement under section 241(a)(5) (includ22 ing any challenge to the reinstated order), except as

23 provided in paragraph (2) or (3).

24 ‘‘(2) CHALLENGES IN COURT OF APPEALS FOR

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1 TEM, ITS IMPLEMENTATION, AND RELATED INDI2 VIDUAL DETERMINATIONS.—

3 ‘‘(A) IN GENERAL.—Judicial review of de4 terminations under section 241(a)(5) and its

5 implementation is available in an action insti6 tuted in the United States Court of Appeals for

7 the District of Columbia Circuit, but shall be

8 limited, except as provided in subparagraph

9 (B), to the following determinations:

10 ‘‘(i) Whether such section, or any reg11 ulation issued to implement such section, is

12 constitutional.

13 ‘‘(ii) Whether such a regulation, or a

14 written policy directive, written policy

15 guideline, or written procedure issued by

16 or under the authority of the Attorney

17 General or the Secretary of Homeland Se18 curity to implement such section, is not

19 consistent with applicable provisions of this

20 Act or is otherwise in violation of a statute

21 or the Constitution.

22 ‘‘(B) RELATED INDIVIDUAL DETERMINA23 TIONS.—If a person raises an action under sub24 paragraph (A), the person may also raise in the

25 same action the following issues:


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1 ‘‘(i) Whether the petitioner is an

2 alien.

3 ‘‘(ii) Whether the petitioner was pre4 viously ordered removed or deported, or ex5 cluded.

6 ‘‘(iii) Whether the petitioner has since

7 illegally entered the United States.

8 ‘‘(C) DEADLINES FOR BRINGING AC9 TIONS.—Any action instituted under this para10 graph must be filed no later than 60 days after

11 the date the challenged section, regulation, di12 rective, guideline, or procedure described in

13 clause (i) or (ii) of subparagraph (A) is first

14 implemented.

15 ‘‘(3) INDIVIDUAL DETERMINATIONS UNDER

16 SECTION 242(a).—Judicial review of determinations

17 under section 241(a)(5) is available in an action

18 under subsection (a) of this section, but shall be lim19 ited to determinations of—

20 ‘‘(A) whether the petitioner is an alien;

21 ‘‘(B) whether the petitioner was previously

22 ordered removed, deported, or excluded; and

23 ‘‘(C) whether the petitioner has since ille24 gally entered the United States.


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1 ‘‘(4) SINGLE ACTION.—A person who files an

2 action under paragraph (2) may not file a separate

3 action under paragraph (3). A person who files an

4 action under paragraph (3) may not file an action

5 under paragraph (2).’’.

6 (c) EFFECTIVE DATE.—The amendments made by

7 subsections (a) and (b) shall take effect as if enacted on

8 April 1, 1997, and shall apply to all orders reinstated on

9 or after that date by the Secretary of Homeland Security

10 (or by the Attorney General prior to March 1, 2003), re11 gardless of the date of the original order.

12 SEC. 804. WITHHOLDING OF REMOVAL.

13 (a) IN GENERAL.—Section 241(b)(3) of the Immi14 gration and Nationality Act (8 U.S.C 1231(b)(3)) is

15 amended—

16 (1) in subparagraph (A), by adding at the end

17 the following: ‘‘The burden of proof is on the alien

18 to establish that the alien’s life or freedom would be

19 threatened in that country, and that race, religion,

20 nationality, membership in a particular social group,

21 or political opinion would be at least one central rea22 son for such threat.’’; and

23 (2) in subparagraph (C), by striking ‘‘In deter24 mining whether an alien has demonstrated that the

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1 son described in subparagraph (A)’’ and inserting

2 ‘‘For purposes of this paragraph’’

3 (b) EFFECTIVE DATE.—The amendments made by

4 subsection (a) shall take effect as if included in the enact5 ment of section 101(c) of the REAL ID Act of 2005 (divi6 sion B of Public Law 109–13).

7 SEC. 805. CERTIFICATE OF REVIEWABILITY.

8 (a) ALIEN’S BRIEF.—Section 242(b)(3)(C) of the

9 Immigration and Nationality Act (8 U.S.C.

10 1252(b)(3)(C)) is amended to read as follows:

11 ‘‘(C) ALIEN’S BRIEF.—The alien shall

12 serve and file a brief in connection with a peti13 tion for judicial review not later than 40 days

14 after the date on which the administrative

15 record is available. The court may not extend

16 this deadline except upon motion for good cause

17 shown. If an alien fails to file a brief within the

18 time provided in this paragraph, the court shall

19 dismiss the appeal unless a manifest injustice

20 would result.’’.

21 (b) CERTIFICATE OF REVIEWABILITY.—Section

22 242(b)(3) of such Act (8 U.S.C. 1252 (b)(3)) is amended

23 by adding at the end the following new subparagraphs:

24 ‘‘(D) CERTIFICATE .—


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1 ‘‘(i) After the alien has filed the

2 alien’s brief, the petition for review shall be

3 assigned to a single court of appeals judge.

4 ‘‘(ii) Unless that court of appeals

5 judge or a circuit justice issues a certifi6 cate of reviewability, the petition for review

7 shall be denied and the government shall

8 not file a brief.

9 ‘‘(iii) A certificate of reviewability may

10 issue under clause (ii) only if the alien has

11 made a substantial showing that the peti12 tion for review is likely to be granted.

13 ‘‘(iv) The court of appeals judge or

14 circuit justice shall complete all action on

15 such certificate, including rendering judg16 ment, not later than 60 days after the date

17 on which the judge or circuit justice was

18 assigned the petition for review, unless an

19 extension is granted under clause (v).

20 ‘‘(v) The judge or circuit justice may

21 grant, on the judge’s or justice’s own mo22 tion or on the motion of a party, an exten23 sion of the 60-day period described in

24 clause (iv) if—


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1 ‘‘(I) all parties to the proceeding

2 agree to such extension; or

3 ‘‘(II) such extension is for good

4 cause shown or in the interests of jus5 tice, and the judge or circuit justice

6 states the grounds for the extension

7 with specificity.

8 ‘‘(vi) If no certificate of reviewability

9 is issued before the end of the period de10 scribed in clause (iv), including any exten11 sion under clause (v), the petition for re12 view shall be deemed denied, any stay or

13 injunction on petitioner’s removal shall be

14 dissolved without further action by the

15 court or the government, and the alien

16 may be removed.

17 ‘‘(vii) If a certificate of reviewability is

18 issued under clause (ii), the Government

19 shall be afforded an opportunity to file a

20 brief in response to the alien’s brief. The

21 alien may serve and file a reply brief not

22 later than 14 days after service of the Gov23 ernment’s brief, and the court may not ex24 tend this deadline except upon motion for

25 good cause shown.


I4437.AGL
314 

168

•HR 4437 IH

1 ‘‘(E) NO FURTHER REVIEW OF THE COURT

2 OF APPEALS JUDGE’S DECISION NOT TO ISSUE

3 A CERTIFICATE OF REVIEWABILITY.—The sin4 gle court of appeals judge’s decision not to

5 issue a certificate of reviewability, or the denial

6 of a petition under subparagraph (D)(vi), shall

7 be the final decision for the court of appeals

8 and shall not be reconsidered, reviewed, or re9 versed by the court of appeals through any

10 mechanism or procedure.’’.

11 (c) EFFECTIVE DATE.—The amendments made by

12 this section shall apply to petitions filed on or after the

13 date that is 60 days after the date of the enactment of

14 this Act.

15 SEC. 806. WAIVER OF RIGHTS IN NONIMMIGRANT VISA

16 ISSUANCE.

17 (a) IN GENERAL.—Section 221(a) of the Immigra18 tion and Nationality Act (8 U.S.C. 1201(a)) is amended

19 by adding at the end the following new paragraph:

20 ‘‘(3) An alien may not be issued a nonimmigrant visa

21 unless the alien has waived any right—

22 ‘‘(A) to review or appeal under this Act of an

23 immigration officer’s determination as to the inad24 missibility of the alien at the port of entry into the

25 United States; or


I4437.AGM
315 

169

•HR 4437 IH

1 ‘‘(B) to contest, other than on the basis of an

2 application for asylum, any action for removal of the

3 alien.’’.

4 (b) EFFECTIVE DATE.—The amendment made by

5 subsection (a) shall apply to visas issued on or after the

6 date that is 90 days after the date of the enactment of

7 this Act.

Æ


I4437.AGN
316 

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes to—— 

Mr. SCOTT. Mr. Chairman, parliamentary inquiry. Did I understand you to say that each section would be considered for amendment as read? 

Chairman SENSENBRENNER. Each title will be considered for 

amendment as read—title, not section. 

Mr. SCOTT. I would ask unanimous consent, if an amendment is 

relevant to one section but covers other sections, that the amendment could be in order. 

I have an amendment that strikes all the mandatory minimums 

in the bill, and rather than having section by section, it would 

make more sense to have one amendment. 

Chairman SENSENBRENNER. The Chair would recommend that 

you redraft your amendment because everybody else would then 

ask the same thing and we would be jumping all around the bill 

on disjointed questions. 

Let me redraft the unanimous consent request. I would ask 

unanimous consent that the bill be considered open for amendment 

by title, each title be considered as read, but that an amendment 

would be in order that deals with several different titles as long as 

it is offered to the last title of the bill to which it relates. With that 

understanding, without objection, so ordered. 

The Chair now recognizes himself for 5 minutes to explain the 

bill. 

America has lost control of its borders and is experiencing an unprecedented rise in illegal immigration. Border insecurity and lax 

enforcement of our Nation’s immigration laws poses a security 

threat to the American people and rewards those who violate the 

law. 

Large majorities of Americans support efforts to restore integrity 

to our Nation’s borders and to stem the tide of illegal entry into 

the United States. America is a nation of immigrants but it is also 

a nation of laws. These concepts are not mutually exclusive and the 

legislation we consider at today’s markup reflects this recognition. 

Earlier this week, Homeland Security Chairman King and I introduced legislation to regain control of our borders and demagnetize the lure of higher-wage employment that drives illegal entry 

into this country. H.R. 4437 will help restore the integrity of our 

Nation’s borders and reestablish respect for our laws by holding 

violators accountable, including human traffickers, employers who 

hire illegal aliens, and alien gang members who terrorize communities throughout the country. 

This legislation incorporates vital border security protection provisions contained in H.R. 4312, reported by the Committee on 

Homeland Security earlier this month. 

I will briefly outline some of the most important provisions of 

this legislation within this Committee’s jurisdiction. First, the bill 

will fulfill the unkept promise of the Immigration Reform and Control Act of 1986 by providing all employers with a reliable method 

of determining whether employees are eligible to work. The bill institutes an employer eligibility verification system in which all employers will confirm or deny the authenticity of Social Security 

numbers offered by job applicants. This mechanism will identify 

317 

fraudulent submissions and ensure that employees are not working 

in the U.S. illegally. 

The bill expands on the promise of Representative Calvert’s H.R. 

19 to build upon a successful pilot program that currently enables 

employers to verify the employment eligibility of their workers. 

Currently, employer participation in this program is on a voluntary 

basis. This legislation requires that all employers will check new 

hires against this database within 2 years. 

The bill also increases penalties for alien smuggling. Under current law, individuals convicted of smuggling crimes often receive lenient sentences. The GAO has found that convicted smugglers, including those responsible for death or serious injury, receive an average sentence of only 10 months. Weak penalties fuel a trade in 

illegal alien smuggling because the risk of punishment for illegally 

transmitting aliens is far less than transmitting illegal drugs or 

committing other serious crimes. 

Those who suffer the most are often the most vulnerable and 

desperate, entering our country in perilous conditions that sometimes result in either injury or death. Moreover, the debts owed to 

alien smugglers by those transported in the country illegally often 

create a form of indentured servitude that enriches criminal syndicates. The legislation establishes strong penalties to deter this 

trade in human traffic. 

The legislation also cracks down on alien members of violent 

street gangs that have become a threat to communities across the 

country. It incorporates the Alien Gang Removal Act which was authored by Congressman Forbes, which passed this Committee. The 

bill also increases penalties for previously deported aliens who illegally reenter the United States. These provisions were incorporated 

from H.R. 3150 introduced by Congressman Issa. 

A crucial provision of the legislation remedies the current situation in which the U.S. is required to release dangerous alien criminals onto our streets. Department of Homeland Security is currently not permitted to detain for more than a short time dangerous aliens who cannot be deported. This has compelled the release of thousands of criminal aliens, including murders and rapists. One of those released subsequently murdered a New York 

State trooper. The legislation allows for the detention of such illegal aliens. 

The bill also bars aliens who are terrorists or security risks from 

becoming naturalized U.S. citizens, makes aggravated felons inadmissible to the U.S., and facilitates the deportation of aliens who 

sexually abuse minors. 

Many of the provisions in the bill were requested by the Justice 

Department and the Department of Homeland Security. This legislative effort will not only help regain control of our borders and 

prevent illegal immigration, but will help strengthen and promote 

our compassionate and welcoming legal immigration system. 

At this point, I wish to provide the following reminder to Committee Members. Rule XVI(7) of the House requires that Committee amendments be germane to the Rule X jurisdiction of the 

Committee considering the amendment. The legislation we consider 

today incorporates several border security provisions reported by 

the Committee on Homeland Security. Rule X provides the Committee on Homeland Security with jurisdiction over the administraVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00321 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
318 

tive aspects of the Department of Homeland Security as well as 

border and port security, except immigration policy and nonborder 

enforcement. As a result, amendments offered at today’s markup 

exclusively within the Rule X jurisdiction of the Committee on 

Homeland Security will be considered nongermane for purposes of 

this markup, and I urge my colleagues to support the bill and recognize the gentleman from Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman and Members. 

This is a sad moment as we close out the first year of the 109th 

session of Congress because this bill is mostly not about border security; the bill includes some provisions, but uses them to bootstrap 

on anti-immigrant legislation, a set of legislation that has nothing 

to do with security at the border. And yet again the Republicans 

are using the fears of terrorism that Americans have in this uncertain post-September 11th world to piggyback its anti-immigrant 

agenda on a border security proposal, and I am deeply troubled by 

the procedure that has been used. 

Instead of reforming our immigration system to improve border 

security and effectively and realistically address undocumented immigration, this bill further destroys the system. It is so heinous 

and extreme that the Democrats on this Committee agree that this 

bill cannot be fixed. It is a nonstarter. 

And while we are eager to tell the American people why this bill 

is so dangerous, we will not spin our wheels on an impossible task 

in this partisan environment. With few exceptions, we will not even 

seek to amend this atrocious, irreparable bill that I think does no 

honor—brings no honor to this Committee in bringing it forward 

under these circumstances. 

Repeatedly, over the last decade the Republican-controlled House 

has passed one immigration bill or border enforcement bill after 

another, yet the tide of unlawful immigrants entering this country 

continues to rise and then disappear into a shadowy, unknown society. Republicans will pass a policy that pretends to be tough on security and enforcement and then refuse to fund the policies year 

after year. We know the drill. Everybody is on to the game. 

We do not sanction employers who hire unauthorized immigrant 

workers, and yet only three employers in the entire country were 

sanctioned last year for using unlawful labor. We are unable to detain or deport everyone here lawfully. We don’t know who has come 

or who has gone or who is dangerous. We have done nothing to 

bring the 11 million unlawfully present immigrants out of the 

shadows. 

And so it is with a heavy heart that we begin the task that is 

before us on a bill that is not worthy to be brought before the Committee at this time. 

And I return the balance of my time, Mr. Chairman. 

Chairman SENSENBRENNER. Without objection, all Members’ 

opening statements may be included in the record at this point. 

Mr. BERMAN. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California seek recognition? 

Mr. BERMAN. Do we have an opportunity at this point, moving 

to strike the last word, to discuss the proposal that is in front of 

us? 

319 

Chairman SENSENBRENNER. If the gentleman desires, he can 

move to strike the word. 

Mr. BERMAN. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. Mr. Chairman, perhaps because I am going to 

make some harsh comments, I want to state at the outset that I 

have great respect for the Chairman’s intelligence and his fairness 

in conducting this Committee. This is one of the most polarized 

Committees on the House of Representatives. We have many, many 

ideological differences, and while I feel—and will explain why I 

feel—so strongly about what is going on here today, I wanted to 

put it in the context of those comments. 

The majority’s decision to bring forth, as our Ranking Member 

said, on the week before we are about to leave, the Border and Immigration Enforcement Act of 2005, to my way of thinking can only 

be attributed to one of three things: stupidity, political panic, or venality. 

I want to say that a—before—I will elaborate on why I feel that 

way, but I want to give some views about where I think most 

Democrats are coming from on this issue. 

We believe illegal immigration is wrong. We think we have a national crisis respecting illegal immigration, and we think we should 

do whatever we can do to effectively stop it. 

We think that a fundamental attribute of national sovereignty is 

substantial control of who comes into this country and how they 

come in and that the consequences of that lack of control—and we 

do have to a great extent a lack of control—causes incredibly serious problems: massive disruptions and impacts on public services, 

health care, education, law enforcement, humanitarian tragedies of 

tremendous proportions, exploitation of people, unsafe working conditions, disregard of labor laws; and particularly, as we know since 

9/11, it becomes a vehicle by which terrorists and gang members 

and drug pushers can penetrate our country, threaten our security, 

and threaten our well-being. 

Democrats support expending the resources and making the 

changes necessary to try and fix this problem. Democrats are willing to push and support tough border enforcement. At least a number of Democrats—I am one of them—are willing to support a 

meaningful verification system to correct the fundamental flaw of 

the 1986 bill so that employers are required to determine whether 

or not the people applying for jobs with them are authorized to 

work in the United States and that that corrects a big part of this 

problem. 

But we also know that just doing those two things alone will do 

nothing; and that is where I get to the point that putting this proposal before us in the form it is in now—not so much because of 

the provisions that are in this bill, although a number of them I 

would suggest changes—but because of what is not in this bill demonstrates a reckless foolishness or some kind of political panic that 

is motivating the majority to act, notwithstanding the fact that 

what they are proposing will not solve their problem, or a certain 

kind of venality in a political context. 

The stupidity of this bill is that everyone knows this won’t work. 

The Chairman himself, I have read four separate times in the last 

320 

week, says without a guest worker program—we need to have a 

guest worker program, but that won’t come in this bill. The President of the United States, George Bush, on a number of occasions 

has said the only approach to dealing with this issue is on a comprehensive basis. 

We have 11 million people in this country here illegally. Without 

dealing with that fact, we are not going to solve the problem no 

matter how loud we shout about how tough we are. Senators 

Cornyn and Kyl and McCain on the Republican side of the aisle in 

the Senate recognize—they have different ways of approaching it, 

but recognize the need for a comprehensive approach. There are 

people on this Committee who I have talked to who know that 

without dealing with the issue of the 11 million undocumented—— 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. BERMAN. I would ask unanimous consent for 2 additional 

minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. BERMAN. There are people on the other aisle of this Committee that know full well that this bill, one, will never pass the 

U.S. Senate; and secondly, if it were to become law, would never 

deal with the problem unless we deal with the problem of the people in this country now on illegal status, unauthorized status, and 

deal with the issue of future worker and worker needs for American businesses. 

So for those reasons this is a foolish approach. 

So then I come to the conclusion perhaps, since surely the majority would not do something that cannot work intentionally, they 

must have a different motivation. And perhaps it is the fear of 

being Dreierized or Campbellized that certain kinds of demagogues 

on talk radio and the very understandable anger of the American 

people about our failure to fix this problem make them want to go 

for the quick-fix, easy solution that is no solution, and that this is 

fear at a time of plunging polls and scandals and demonstrations 

of executive incompetence and politicization of the disaster relief 

process. This becomes an issue to try and get a hold of in order to 

position oneself for the next elections. 

Or maybe there is venality here. Maybe this is Ross Barnett of 

the 21st century. We are going to out-set whoever runs against us 

by demagoguing this issue. And these are harsh comments, but I 

can only understand what is happening here in the context of these 

ideas because you know, you know—— 

Chairman SENSENBRENNER. The gentleman’s time has once again 

expired. 

Mr. BERMAN. My last sentence is, this isn’t about—we can have 

an interesting and philosophical debate about birthright, citizenship or what kind of enforcement—interior enforcement to have, or 

specific measures; but the notion it’s not what is in this bill, that 

means this bill is destined not to solve the problem, and for that 

reason, I don’t believe that this Committee should pass this bill out 

of here. 

Chairman SENSENBRENNER. The Clerk will designate title I. 

The CLERK. Securing United States borders—— 

Chairman SENSENBRENNER. Are there any amendments to title 

I? 

Mr. KING. Mr. Chairman. 

321 

Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King, 

for what purpose do you seek recognition? 

Mr. KING. I have an amendment at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

Mr. KING. Eighty-nine. 

The CLERK. Amendment to H.R. 4437, offered by Mr. King of 

Iowa: Insert after Section 2 the following new section, Section 3, 

sense of Congress on setting a manageable level of immigration. It 

is the sense of Congress that the immigration and naturalization 

policy shall be designed to enhance the economic, social, and cultural well-being of the United States of America. 

[The amendment follows:] 

322 

1

H.L.C.

AMENDMENT TO H.R 4437

OFFERED BY MR. KING OF IOWA

Insert after section 2 the following new section:

1 SEC. 3. SENSE OF CONGRESS ON SETTING A MANAGEABLE

2 LEVEL OF IMMIGRATION.

3 It is the sense of Congress that the immigration and

4 naturalization policy shall be designed to enhance the eco5 nomic, social and cultural well-being of the United States

6 of America.


4437A.AAB
323 

Chairman SENSENBRENNER. The gentleman from Iowa is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

I offer this amendment today to include a sense of Congress 

about the future direction of our immigration policy. I wholly support immigration policy that is designed to enhance the economic, 

social and cultural well-being of the United States of America. Immigrants have made and will continue to make valuable contributions to our Nation. To benefit both immigrants and the United 

States, we must develop an immigration policy that aids the assimilation of newcomers by assuring our Nation does not admit 

more immigrants than it can reasonably accommodate. 

Assimilation is valuable to immigrants who benefit from our 

shared American culture of personal responsibility, freedom and 

patriotism. The values shared by our civilization founded on the 

heritage of Western civilization, religious freedom and free enterprise capitalism serve immigrants and native born alike. 

I am concerned that the recent rise in immigration levels in this 

country will make it difficult for newcomers to assimilate and find 

jobs. We must be careful to admit only as many newcomers as we 

can accommodate so our society will not be burden by unemployed 

immigrants. Cultural continuity must be assured by drafting policy 

that allows new immigrants to thrive and benefit the United 

States, not depend on the Federal Government for survival. 

As Americans, we should promote a naturalization process that 

promotes American values, the responsibilities of citizenship and 

our constitutional principles. Candidates for naturalization should 

be proficient in English. Not only will English proficiency help newcomers attain better-paying jobs, it also provides a means of communication and unity for all Americans. 

Finally, as a sovereign Nation, in a time of war controlling our 

borders is paramount. We must ensure terrorists do not infiltrate 

the United States. We must tighten and strengthen border control 

efforts so illegal aliens do not enter our country. 

We must always remember the ultimate goal should be promotion of the well-being of the United States of America, not the 

benefit of a neighboring country. Setting a manageable legal of immigration is a reasonable request to achieve this objective. I ask for 

your support on this amendment. 

Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. Does the gentleman yield back his 

time? 

Mr. KING. I yield back. 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from New York, for 

what purpose do you seek recognition? 

Mr. NADLER. To speak on the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you, Mr. Speaker. 

This amendment, I heard what Mr. King thinks he means by it, 

but if you read the amendment, it is meaningless. It is the sense 

of Congress that the immigration and naturalization policy should 

be designed to enhance the economic, social and cultural well-being 

of the United States of America. 

324 

Well, I think everybody will agree with that sentiment. Certainly 

our laws, all our laws, should be designed to enhance the economic, 

social and cultural well-being of the United States of America. Of 

course, on this Committee we may have 36 different ideas of what 

bills, laws, amendments would do that. We may have different 

ideas of what advances the economic, social and cultural well-being 

of the United States of America. 

I will stipulate that I will support this amendment because who 

could not, who could be against enhancing the economic, social and 

cultural well-being of the United States, although my interpretation of what would do that may be very different than Mr. King’s 

interpretation, may in fact be diametrically opposed to what he 

thinks this amendment will do. So because this amendment states 

well-meaning goals, it is totally meaningless, I urge everyone to 

vote for it. 

Chairman SENSENBRENNER. Does the gentleman want to yield 

back? 

Mr. NADLER. I do not want to yield back. 

Second, I want to second what Mr. Berman said. It is an outrage 

this bill is before us today, not just for the reasons that he said, 

but because this is a 169-page bill which makes fundamental 

changes, some technical, some very complicated, with far-reaching 

effects in many different aspects of the law; and the Democrats 

didn’t see this 169-page bill until the day before yesterday. We 

have not had an opportunity to analyze it. I guarantee that the 

public at large, the professors, lawyers, immigration bar have not 

had an opportunity to analyze it or give comments. 

There is no pressing necessity. When we passed the PATRIOT 

Act bill, unread, 4 years ago—not talking about this year, but originally 4 years ago—no one had a chance to read that. We were told 

well, we can’t wait a week, there will be blood on our hands. 

Why can’t we wait a week, or 2, or 6? Nothing is happening. 

This problem is a long-standing problem, it is going to be longstanding. We should deal with it as Mr. Berman said. But to deal 

with it by passing what may not be a one-House bill—or even 

worse, not a one-House bill—without proper analysis, with no opportunity to really look into it, is a disgrace and a travesty on the 

legislative record. 

I am going to use the remaining time to discuss one provision of 

this bill which I just glanced at, haven’t had a chance to really go 

into it, but is something that deserves extensive discussion in this 

Committee. 

The expedited removal provision in title IV. This bill would require the Border Patrol to pick up and deport without even an administrative hearing, to deport without even an administrative 

hearing anyone within 100 miles of the border that an agent thinks 

is an undocumented immigrant who has been present less than 14 

days. 

It expands on the controversial policy of expedited removal, 

which grants extraordinary and unprecedented power to low-level 

immigration officers to remove individuals without review and 

without a fair hearing. ‘‘expedite removal’’ currently is applied to 

noncitizens arriving at airports with apparently improper documents, to noncitizens arriving by sea and a few other categories of 

noncitizens. Even as currently applied, expedited removal results 

325 

in terrible mistakes including its wrongful application to genuine 

refugees and even to U.S. citizens. 

In 2001, 4 years ago, the Senate heard harrowing testimony from 

refugees wrongly subjected to expedited removal, including in one 

instance an Algerian refugee who faced persecution from Islamic 

extremists for his refusal—refusal to participate in a plot to murder his employer, the former Algerian president. Because of expedited removal, he was shackled when he said he would be sent 

back without review despite his claims of political asylum. 

A Tibetan Buddhist monk also testified before the Senate, a 

monk whose comrades, two monks and a nun, were wrongly sent 

back to China and no one has heard from them since. 

The Senate also heard the case of Sharon McKnight, an American citizen of Jamaican descent who suffers a mental disability 

and was wrongly put into expedited removal and sent to Jamaica 

because an inspector mistakenly thought her passport was fake 

and she didn’t have the mental competence to persuade him otherwise. 

Expedited removal, Mr. Chairman, should be fixed, not expanded. Because there is no check on expedited removal, expanding 

it to any person a Government official thinks is a recently arrived 

illegal immigrant within 100 miles of the border will inevitably result in the wrongful arrest and even deportation of perfectly legal 

residents, and even of U.S. citizens who may be of Mexican America heritage or look foreign to a Border Patrol officer, because there 

is no appeal for that, no hearing or administrative proceeding, 

never mind an immigration judge. 

Expanding this policy to persons—— 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. NADLER. I will ask unanimous consent for 2 additional minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. NADLER. Thank you. 

Expanding the policy of expedited removal to include persons already within the United States poses grave constitutional problems. In the case of Zadvydas v. Davis the U.S. Supreme Court 

ruled in 2001 once an alien enters the country, the legal circumstances change, for the due process clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent, end quote 

from the Supreme Court. 

So to have an expedited removal for someone within the United 

States not caught at the border without any kind of due process is 

clearly unconstitutional. In Shaughnessy v. United States ex rel. 

Miezi, also decided by the Supreme Court, although this is an older 

case, aliens who have once passed through our gates, even illegally, 

may be expelled only after proceedings conforming to traditional 

standards of fairness encompassed in due process. 

So here we have a provision in this bill which we don’t have time 

to really go into, don’t have time to examine, and don’t have time 

to fix because maybe its aims are okay. But we don’t have time to 

fix it because we have got to rush this bill through, and yet it is 

clearly unconstitutional, as applied, in many cases. It will clearly 

result in U.S. citizens, legally admitted aliens, being deported improperly; and it will result in people with good claims of political 

326 

asylum, people whom we want in this country, who may have fled 

here because they oppose the Taliban or opposed the tyrants that 

we are opposing, we will send them back to be murdered, raped or 

punished for their nerve in standing up for American values and 

for freedom. 

This is really something that is not a good idea. I yield back. 

Chairman SENSENBRENNER. The question is—— 

Mr. DELAHUNT. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

Mr. DELAHUNT. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. DELAHUNT. I won’t take the 5 minutes. 

I would encourage support for the amendment for the reasons articulated by my colleague from New York, Mr. Nadler. 

My good friend from Iowa, Mr. King, speaks about a number, a 

number which I would pose to him that I am not sure of, but a 

number that he believes that this Nation could deal with in terms 

of assimilation; and I wonder if he would share with us that particular number of immigrants. 

I yield to my friend from Iowa. 

Mr. KING. Thank the gentleman from Massachusetts. 

And I have spoken openly about this on the floor, as Mr. 

Delahunt may recall, and I said that I will support a consistent 

level of immigration that is in the 450 to 500,000 a year number, 

kind of the legal number that we have. 

I think if anybody is going to have an opinion on immigration, 

the first thing they ought to answer is, is there such a thing as too 

much immigration, and the next question is how much is too much. 

If you don’t have an opinion on that, then you ought not engage 

in this debate. 

I thank you and yield back. 

Mr. DELAHUNT. I yield back. 

Ms. LOFGREN. Mr. Chairman. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Lofgren. 

Ms. LOFGREN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. The amendment itself, as pointed out by our colleague from New York, Mr. Nadler, basically is meaningless, and 

therefore, we can vote whichever way we want; it doesn’t accomplish anything. But I do think it is important to note some of the 

severe problems in the base bill. 

One of the things that has not yet been fully discussed is that 

approval and enactment of this bill into law would preclude President Bush’s proposal to have some kind of orderly progress to allow 

those who are temporarily working to have legal status even for a 

temporary period, because the bill turns people who are undocumented into aggravated felons. 

I think it is worth pointing out that among the several million 

people who are here without documents and whom we need to deal 

with include at least a million and a half children who, under the 

327 

bill, would become aggravated felons. To think that this would 

solve the problem that besets the country, I think is a mistake. 

I want to note something else, and it is a small issue perhaps, 

but it is a big issue to those who are fleeing communism, and it 

is an issue that I raised in the Homeland Security markup, and we 

were advised that we lacked jurisdiction in the Homeland Security 

Committee, so obviously we have jurisdiction in this Committee; 

and that deals with Section 404, the denial of admission to nationals of countries denying or delaying accepting an alien. 

It is a problem when the United States decides to deport someone; if the country of origin refuses to repatriate that person, it 

causes a problem. The answer to that is diplomacy. Recently, although it has caused problems in some communities, the United 

States did negotiate an agreement with the country of Cambodia 

to accept people who are permanent residents of the United States 

who are not deportable back to Cambodia. 

The problem that I see with this provision is that it punishes the 

victim of communism rather than actually dealing with the Communist government that is at fault, and let me give you an example. I have a large number of Vietnamese Americans in my district. 

I will guarantee you this, the Communist government in Vietnam 

does not care about the civil rights of their citizens. As a matter 

of fact, as some Members of the Committee know, they are actively 

engaged in oppressing religious freedom, political freedom, freedom 

of the press. I mean they have been cited by our State Department 

as a country of particular concern. 

Under the provisions of this act, if someone escapes from the 

Communists in Vietnam because they have been oppressed by that 

authoritarian Communist government, they would not be admitted 

to the United States because their government refuses to repatriate 

deportees. 

Now, how is that a sensible provision? It is not. 

I would like to point out that in addition to Vietnamese who are 

fleeing communism, the other big country that refuses to repatriate 

is China. Now, we have an economic relationship with China, but 

I have not been impressed that the Chinese government is particularly concerned about the civil rights, civil liberties and religious 

freedom of the people of China. In fact, many Members of Congress 

have outlined various abuses that have occurred by the Chinese 

government towards their citizens, including forced abortions, oppression of religious freedom and the like. 

Why should we oppress further those people who have fled from 

China, presented themselves to the United States having fled from 

that oppressive Communist regime? Why should we turn those victims of communism away to punish the Communist government? 

This is completely nonsensical. It is only one of many bad provisions in this bill, but it is something that ought to be thoroughly 

rejected. It will not accomplish its goal, and it really is playing into 

the hands of authoritarian Communist regimes, especially in Asia, 

and deserves our repudiation and—— 

Ms. WATERS. Will the gentlelady yield? 

Ms. LOFGREN. I will be happy to yield to the gentlelady. 

Ms. WATERS. Since you have taken a look at that section, do you 

understand this section basically dictates that if they refuse to take 

a person back, we close down our borders to the country forever? 

328 

Ms. LOFGREN. It would include not just refugees but, for example, if a person born in China married my son. 

Chairman SENSENBRENNER. The gentlewoman’s time has expired. 

Ms. LOFGREN. I would ask 1 additional minute. 

Mr. ISSA. I object. Not speaking to the amendment. 

Chairman SENSENBRENNER. Objection is heard. 

The question is on agreeing to the amendment offered by the 

gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. I yield to the gentlelady from California. 

Ms. LOFGREN. Thank you. I would just, in response to my colleague from California, Ms. Waters, point out that this is a comprehensive bar and it would include those who are married to 

American citizens. 

If my son falls in love and marries a gal from China, I mean she 

would be excluded. It would include Nobel Prize winners who want 

to come over and become part of the American economy and bring 

their patent portfolio with them, in addition to those who would be 

asylees. 

So I think this is really a way to not only punish victims of communism but also to punish Americans for no good reason. 

And I note that my colleague from Texas wished time so I would 

further yield to the gentlelady. 

Mr. SCOTT. I yield. 

Ms. JACKSON LEE. I thank—is the gentleman yielding? 

Mr. SCOTT. I yield to you. 

Ms. JACKSON LEE. I thank very much the distinguished gentleman and distinguished gentlelady from California. 

Let me just—as the time wanes, just simply say that as we look 

at the provisions that you have spoken about, it adds to my angst 

and concern that this legislation creates gridlock for the immigration system of America. It is not a practical approach, though there 

are many aspects that I believe we could have collaborated on in 

a very bipartisan way; evidence the border security bill out of 

Homeland Security. H.R. 4044 that I had offered spoke to the question of enhancing Border Patrol agents’ training, scholarship, 

equipment and detention beds. 

As I look at the legislation that we have now, we will effectively 

shut down the Nation’s resort communities, hotels, restaurants. 

Again, we go back to employer sanctions which were ineffective in 

1996, and I don’t know how they can be effective now. You give no 

out and no relief for existing undocumented individuals who are 

tax-paying on homes or children who are in school. There is no relief whatsoever. 

You close the door to a guest worker program and you close the 

door to an earned access to legalization, fair responses to the 11 

million undocumented aliens in this country. When we leave this 

place today we will have done nothing to address that question. 

My concern on Mr. King’s amendment is that it is benign in and 

of itself, and I wish that he would have an amendment that says 

that we want to address the undocumented problem in this country. And when I say ‘‘problem,’’ I am suggesting that we cannot 

329 

look away from hard-working, tax-paying individuals. Again, we 

take judicial review to the next level, and though we are a nation 

of due process and the Bill of Rights, we suggest that a revocation 

of a visa is not appealable. 

I support the alien smuggling provisions, enhanced provisions to 

avoid the loss of life, those being smuggled across the border. It is 

reasonable. But certainly I think the process of due process is reputable and adds to the democracy and the image of the United 

States. 

We know that this Nation is a nation of laws, it is a nation of 

immigrants. We also recognize that this country is better because 

we interact with people from around the world. It helps us when 

students from the Mideast come and are educated in the Nation’s 

schools. In many instances, they may help us create jobs. 

This bill does not open the door to a fix of the immigration system; it dampens asylum, it rushes for expedited removal without 

due process, and in fact, in the detention it seems to me that rather than focusing on the OTMs, which many of us have suggested 

are the gateway for terrorists, we are suggesting that we are going 

to detain everyone. 

Even in H.R. 4044 I was bold enough to suggest that we needed 

100,000 beds. You will never get the number of beds necessary in 

order to provide the security that this bill is offering. 

Lastly, let me say when we begin to open the doors, as many of 

my good friends have advocated for local officials who are clamoring to be immigration officers, we are going down the pathway 

of no return and doom. Local law enforcement are to get the cops 

and robbers in their own community. And believe me, they are over 

their heads in that, to add the immigration issue so that the least 

little person driving their vehicle down someone’s highway is intimidated by a local sheriff; and I do believe they have good intentions. 

The bill also adds to the enhanced responsibility of the Department of Defense, and I clearly believe you are crossing the line of 

demarcation of making this country a militarized nation by insisting that the Department of Defense has an active role on the border. 

Chairman SENSENBRENNER. The time of the gentleman from Virginia has expired. 

Ms. JACKSON LEE. I would suggest that this bill needs collaborative effort, Mr. Chairman, and I hope we can take it back and 

work with the Democrats. I yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentleman from Iowa, Mr. King. Those 

in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it and the amendment 

is agreed to. Are there further amendments to title I? 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. For what purposes does the gentleman from New York seek recognition? 

Mr. NADLER. Strike the last word on the bill. 

Chairman SENSENBRENNER. The gentleman, I believe, has already been recognized. 

Mr. NADLER. I was recognized on the amendment, not on the bill. 

330 

Chairman SENSENBRENNER. Are there further amendments to 

title I? 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from New York is 

recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, since we have not had proper time to analyze this 

bill or to go into detail, I just want to take this time to analyze one 

and, if I have time, two other provisions of this bill that deserve 

extensive analysis and discussion. 

Also, in title VIII, I think it is title VIII, is the criminalization 

of immigrants, including asylum seekers and others with valid 

claims for relief. 

Immigration laws and regulations include both civil and criminal 

penalties. Removal is normally a civil process that determines 

whether a noncitizen is present legally and whether any relief, 

such as asylum or humanitarian relief, is available under the law. 

Some knowing violations of immigration law—immigrant smuggling, entry without inspection, failing to register when required— 

are criminal. Section 203 of this bill would create a new Federal 

crime of illegal presence defined broadly as any violation, even 

technical, of an immigration law or regulation, even without any 

intent to violate the immigration laws. 

In essence, it makes every immigration violation, however minor, 

into a Federal crime. In fact, it makes actions which are unavoidable into Federal crimes. For example—and here are some consequences that I don’t think have been anticipated or thought 

through—penalizing immigrants with valid asylum claims or other 

valid claims for relief come out from this provision. 

The bill would turn into criminals noncitizens whose claims for 

immigration benefits have not yet been decided. 

Persons fleeing persecution or on a temporary visa may have 

their visa expire before their asylum claim is adjudicated. Under 

the bill, they would become criminals subject to imprisonment for 

a term of years even if they are subsequently granted asylum. They 

would be subject—they would be criminals and subject to imprisonment for being here illegally because the Government delayed in 

granting them their valid asylum claim. 

Other forms of relief, like temporary protective status granted by 

countries that suffer natural disaster, give temporary relief from 

deportation. The Government’s decision to grant asylum or temporary protective status or other forms of relief would not necessarily wipe away the consequences of even a technical period of 

illegal presence, which would be criminal, despite the fact the immigrant never intended to violate any law and applied for relief in 

the correct manner. 

Another consequence is that the overbroad definition of ‘‘smuggling’’ in section 202 could criminalize the work of churches or 

other refugee organizations acting in good faith. Harboring anyone 

who is illegally present is a crime, even with no intent of financial 

gain, even if that person has a valid asylum claim ultimately 

judged valid. An asylum seeker with a valid claim may be illegally 

present for some period, which would make it criminal for churches 

or refugee organizations to try to help them, treating such organizations the same as smuggling organizations. 

331 

I don’t think, Mr. Chairman, that this is what the authors of the 

bill intended. I hope it is not. I don’t think so ill of them that I 

think they would intend this. 

I think this bill has not been properly thought through in this 

provision as among others, and I would hope that this bill would 

be withdrawn from consideration today until it can get proper venting, proper changes by its sponsors when they agree with the people who comment, proper debate when they don’t agree; and so we 

don’t rush through a very, very important 169-page bill which 

has—— 

Ms. LOFGREN. Will the gentleman yield? 

I just want to point out another provision that really snuck in 

there, and that is in section 613. There is a U.S. Supreme Court 

case that basically recognizes that there are a lot of reasons why 

individuals could plead guilty to a criminal act. 

[11:00 a.m.] 

Ms. LOFGREN. I will give you an example. You are 20 years old. 

You have been arrested for possession of marijuana. You are a kid. 

Your defense lawyer recommends that you plead guilty because you 

don’t have the money and you are not going to serve in any time 

in jail, and so you do that. Thirty years later, it becomes a problem 

immigration-wise. 

The Supreme Court said that unless you understood the immigration implications at the time you made the plea, you could not 

use that provision in the immigration proceedings. There needs to 

be notice so that the plea is actually made intentionally. 

This section basically says that State courts no longer have jurisdiction to run their own business. That is unprecedented that the 

Federal Government would step in to the State courts and start 

telling judges that they cannot modify sentences based on what 

they have found in their own courts based on their own records. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. 

Ms. WATERS. Mr. Chairman—— 

Chairman SENSENBRENNER. The Chair will announce that the 

Members of the majority are committed to stay here as long as it 

takes to get this bill done and put Members of the minority on notice that we will be here until there is a final vote. 

For what purpose does the gentlewoman from California seek 

recognition? 

Ms. WATERS. I seek recognition to strike the last word. 

Chairman SENSENBRENNER. Gentlewoman is recognized for 5 

minutes. 

Ms. WATERS. Mr. Chairman, as I have said to you, I think, on 

more than one occasion, I am prepared to support a reasonable bill 

to deal with the immigration problem that we have in this country. 

I was impressed upon first learning about the bill, because you 

had taken a giant step in dealing with the employers and stepped 

out willing to provide some sanctions. I thought that that was courageous on your part, given that many of the employers would like 

to have it both ways. However, being the fine legal mind that you 

are, Mr. Chairman, I am a bit surprised at some of what I am finding in the bill. 

First of all, you know that there are many of us who have problems with continuing to bog down the legal system with mandatory 

332 

minimum sentencing, and here you have created—in one bill— 

more mandatory minimum sentences than perhaps we created in 

all of the last 2 years. In section 202 alone, you have created eight 

mandatory minimum sentencing, that is in title II, and it goes on 

and on and on in some of the other sections. 

I know, also, not only are you a great legal mind but you are a 

bit of a fiscal conservative. Where does the money come from to expand our court system to deal with all of the mandatory minimums 

and other things that you have put into this bill? I don’t know if 

you gave that consideration. 

But I guess you did, because you want to take some money from 

first responders. Now you know that your President is in this war 

on terrorism, and you know that he set up homeland security. And 

one of the most important aspects of that is to be able to fund first 

responders in our cities so that our firemen and our police officers 

and others will be trained and prepared and have the equipment 

that they need to deal with terrorism. 

What is going to happen when we have one of these alerts where 

everybody is put on notice and they have to move, they have to do 

certain things? Surely, Mr. Chairman, you did not intend to rob our 

cities of money for first responders in this tremendous fight on terrorism that we are engaged in in order to deal with the immigration problem in the way that you are trying to do. 

In addition to that, there are some other issues in the bill that 

I think you could give better consideration to. Now, I know, as my 

colleague from California was discussing, the fact that we have 

some countries that would not allow reentry of removed aliens. But 

you go a bit far and you imply in this bill that if they do not take 

a person back that we are trying to send back that we are going 

to close our borders forever to that country and not allow any persons from that country in under any circumstances. 

Surely you don’t mean that; and I think perhaps, in your haste 

to do something good, you have overlooked the fact that, first of all, 

whatever we do has got to be constitutional. 

Second—— 

Ms. LOFGREN. Would the gentlelady yield? 

Ms. WATERS. I would yield to the gentlelady. 

Ms. LOFGREN. I would turn back to the St. Cyr case, the U.S. Supreme Court case, because I think that decision is based on due 

process in the Constitution, is not going to be overturned statutorily, number one. But I think it is important to note that it is 

not about undocumented or illegal aliens, it is about legal residents, people who have gone through all the hoops, who have obtained their legal residency and who have been caught up either 

when they are trying to reenter the United States after a trip or 

they have applied for U.S. citizenship and got caught up on this. 

So this has no place in a bill about undocumented aliens, and it 

also clearly fails to meet the due process provisions in the constitution. 

It purports to overturn the St. Cyr case. I don’t think it can. But 

it is also very unfair to Americans who are married to these legal 

residents who really need an opportunity to have their situations 

reviewed by a State court judge. 

Ms. WATERS. I think you is absolutely correct, and I think it is 

just an oversight on Mr. Sensenbrenner’s part. 

333 

Now this mandatory detention for all illegal entrants until they 

are removed, where are you going to put them? I don’t see where. 

Chairman SENSENBRENNER. Gentlewoman’s time has expired. 

Chair asks unanimous consent that the remainder of the bill be 

considered as read and open for amendment at any point. And is 

there any objection? 

Hearing none, so ordered. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Florida seek recognition? 

Ms. WASSERMAN SCHULTZ. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

Mr. Chairman, all of us here today on both sides of the aisle 

clearly recognize and know that immigration reform is necessary. 

Hundreds of thousands of illegal aliens cross our borders each year. 

Just using my own street as an example, four of the seven families 

that live on my own street are recent legal immigrants to this 

country. 

Although these men and women come to America in search of a 

better life for themselves and their families, they obviously place 

a great burden on Federal, State and local governments. The Republican leadership has said many times that Congress should take 

up comprehensive immigration reforms that address not only enforcement but also allow for an adjustment of status for current undocumented immigrants. 

This legislation does no such thing. In fact, this bill’s primary 

focus is on border security and interior enforcement. We need a 

bill, if we are going to really address this problem, that is much 

broader in scope, one that offers real solutions and not another 

simplistic approach to a complex problem. 

I commend to you comments last year from my Governor, my 

State’s Governor, Florida’s Governor Jeb Bush, with whom I rarely 

agree on anything, but I did agree with him on this. He said about 

illegal immigration last year, he said, we shouldn’t allow them to 

come into the country to begin with, but once they are here, what 

do you do? Do you basically say they are lepers to society, that they 

don’t exist? He said a policy that ignores them is a policy of denial. 

Next year is an election year. We all know the stakes that are 

riding on this election. However, the Nation’s immigration laws are 

too far reaching to simply rush through the legislation so that we 

can say we did something on immigration. 

Mr. Chairman, as a Nation, we must address this complex problem, but we need to do this right. We must take an approach that 

addresses the Nation’s illegal immigration problem more thoroughly, including guest worker provisions, programs to increase 

legal immigration, and policies that recognize that undocumented 

immigrants are here. They are here. There is no question that they 

are here, and then address some of the issues that result from 

their presence. 

Until we can take a systematic approach and not take a simplistic approach to this very complex problem, then I cannot support this legislation. 

Thank you, and I yield back the balance of my time. 

334 

Chairman SENSENBRENNER. Are there further amendments to 

the bill? 

Mr. CANNON. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. CANNON. It is amendment Cannon .054. 

[The amendment follows:] 

335 

1

H.L.C.

AMENDMENT TO H.R. 4437

OFFERED BY MR. CANNON OF UTAH

[page and line number refer to print of December 6, 2005 1:23

PM]

In paragraph (3)(A)(i) of section 274A(b) of the Immigration and Nationality Act, as amended by section

702(5) of the bill, [page 141, line 1], insert after ‘‘retain’’ the following: ‘‘a paper, microfiche, microfilm, or

electronic version of’ ’’.


4437B.AAB
336 

Mr. CANNON. This is a technical amendment. Mr. Chairman, if 

I might just begin to explain this while it is being passed out. 

Chairman SENSENBRENNER. A point of order is reserved by the 

gentleman from California. The gentleman is recognized for 5 minutes. 

Mr. CANNON. This is a technical amendment. Last year, the 

House and the Senate passed H.R. 4306, which allows for electronic 

storage of I9 forms by voice vote and was signed into law. This 

amendment merely reinserts the language that an employer may 

keep I9s in electronic format. 

This legislation enhances security and provides greater privacy 

protection for employees by electronic computer storage with a 

backup system. It is far more secure than paper-based systems in 

which paper documents can be lost, damaged, misfiled or accessed 

by unauthorized individuals. 

This language is inadvertently, I believe, dropped from the bill; 

and I am adding back what is already existing law so as not to 

cause any confusion about the intent of Congress. I urge the support of this amendment by my colleagues and yield back the balance of my time. 

Chairman SENSENBRENNER. Does the gentleman from California 

insist on his point of order. 

Mr. BERMAN. No. 

Chairman SENSENBRENNER. The gentleman from New York, for 

what purpose do you seek recognition? 

Mr. NADLER. Strike the last word on the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you, Mr. Chairman. 

I think that as far as I can judge, in not having had a chance 

to read the bill, this is a fine amendment. But it does give me the 

opportunity to comment on another provision of this bill, on the 

court-stripping provisions, which otherwise might not see the light 

of day in our rather abbreviated consideration of this bill. Again, 

these are provisions that ought to be looked at in detail and not 

in a 20-minute period or even a 5-minute period in a Committee 

meeting. 

Because of court-stripping legislation passed 10 years ago and 

again earlier this year, current law severely restricts access to the 

courts for many kinds of immigration claims, including class actions and even ordinary review for many individual claims. As a result, immigrants who allege the Government acted illegally in the 

removal process have only one shot at review directly in the Circuit 

Court of Appeals, many under very narrow scope of review in current law. 

In 2002, Attorney General Ashcroft worsened this problem by severely limiting administrative review by the Board of Immigration 

Appeals, leading to a truncated, one-judge review for most appeals, 

a review that does not satisfy elementary due process. This bill 

would worsen that trend by bringing second class review into the 

last avenue of relief, the Court of Appeals, and by manipulating the 

system to ensure no review at all—no review at all—for many immigrants. No review at all for temporary residents. Legal nonimmigrants—students, guest workers, et cetera, are effectively deprived of any review from a deportation order because they must 

337 

sign a waiver of their right to an administrative hearing or judicial 

review to obtain a visa. 

Under this bill, to get a visa, you have to waive your rights. 

Under current law, such waivers apply only to tourists and other 

short-term visitors who qualify for travel under the visa waiver 

program. Revoking the visas were made unreviewable even by habeas corpus with only a systemic challenge to the statute available 

before the Court of Appeals in the District of Columbia Circuit, 

even if you are in Texas or California or somewhere else. 

For those who still have a right to go into Federal court, a single 

appeals court judge is required within 60 days to issue a court certificate of your ability or the case is automatically dismissed. A 

similar one-judge system for the Bureau of Immigration Appeals 

has led to numerous mistakes and a string of reversals. 

Expedited removal without a lawyer or a hearing, which the bill 

mandates, would apply to all noncitizens within 100 miles of the 

border and also forbids any review by a Federal Court. 

Finally, many decisions, even decisions made with secret evidence, are made unreviewable, even by habeas corpus. The bill 

makes a number of decisions expressly unreviewable. For example, 

the Government’s decision using secret evidence that an applicant 

for naturalization is involved in a terrorist group or has endorsed 

or espoused terrorism cannot be reviewed by a court, cannot be reviewed by the Bureau of Immigration Appeals. The bureaucrat’s 

decision is final. And as we saw in that case in Florida, the jury 

disagreed. 

One thing the authors of this bill should know by now is that not 

every bureaucrat is right 100 percent of the time. I would have 

thought the Republicans would know that. But this bill says every 

bureaucrat is always right and never needs to be reviewed. 

Many decisions regarding voluntary departure agreements, deportation under existing deportation orders—even where Government’s record keeping mistakes led to its entry—are unreviewable. 

Mr. Chairman, it is a fundamental denial of the basic liberty concepts of this country, of the basic due process concepts of the country, to allow bureaucrats to deport people, to violate their rights 

with no review in court, with no review even by an immigration 

judge. It is simply beyond the pale—or it ought to be beyond the 

pale—and this ought not to be in this bill. 

Just one more example of what an ill-considered bill this is and 

why we should not be considering this 169-page bill on less than 

2 days notice at this time. 

I am not terribly hopeful that anything we say here makes any 

difference, because this is all a political ploy, as we know. But, 

nonetheless, it would be nice if this Committee made a semblance 

of acting with some responsibility of actually considering these 

points on their merits. But I suppose that is too much to ask. 

I yield back. 

Ms. JACKSON LEE. Mr. Chairman—— 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Texas seek recognition? 

Ms. JACKSON LEE. I seek to strike the last word. 

Chairman SENSENBRENNER. Gentlewoman is recognized 5 minutes. 

Ms. JACKSON LEE. I thank the Chairman very much. 

338 

Because Mr. Cannon took the opportunity to share with us how 

enhanced technology could be an effective tool in the collective efforts that all of us are trying to achieve, and that is a fair and just 

and comprehensive immigration system, I wanted to make note of 

my considered, I guess, consternation and frustration with ignoring 

of the front-liners, if you will, in this bill and even though there 

may be some representation that the issue is a question of germaneness, but that is of the Border Patrol agency and agents. 

There are any number of us who have walked the line, if you 

will, and that is—of the southern border and the northern border, 

but in particular the southern border—and have seen the Border 

Patrol agents day after day and night after night suffer with the 

half staffing, if you will, of the necessary equipment they need, the 

technology that they need to be able to perform their jobs. 

Interestingly enough, the Republican efforts both in Homeland 

Security and, frankly, here clearly have ignored I think key elements of answering the question of the massive illegal immigration 

that many are concerned about and much of what we know is economic. 

But no one seems to wants to sit down and analyze what do the 

Border Patrol agents need? They do want to analyze let’s see how 

the Department of Defense can violate the seam between civilian 

and defense and engage in the issue of immigration. They do want 

to break the bank of local law enforcement and take them away 

from protecting school children and finding sexual predators and 

making sure that the banks are operating than put them on the 

border. 

It is to me inconsistent to have strong enforcement and you don’t 

have provisions for recruitment, scholarships for the recruitment of 

Border Patrol agents. You don’t have enhanced certifying of their 

positions, advancing them at a civil service level, pension relief. 

You don’t have helicopter and power boats added to their arsenal, 

if you will, motor vehicles where they suffer a severe shortage and 

have to share the vehicles that are down at the border, portable 

computers which are mostly in every local law enforcement. Now 

you will see local law enforcement with hand-carrying or car-carrying computers, radio communication, that does not exist, 

handheld global positioning system and, most of all, simplistically, 

night vision equipment. 

If any of you have stood at the borders as I have done in the 

night watching Border Patrol agents, they are doing their best at 

a disadvantage. Body armor that, frankly, they probably have to 

buy for themselves. Simplistic responses to ensuring that the frontliners of immigration, regulation and control are well-trained, wellskilled and well-equipped. 

I don’t know what we are doing if we ignore that component of 

the work that we have to do. H.R. 4044 would offer that. I had 

hoped that we would be able to merge in a bipartisan manner to 

look at these issues. 

But if we are talking about rapidly responding to the crisis and 

we overlook the Border Patrol agents and we focus on the Department of Defense to give us the strategy, might I say that they are, 

I would hope, filling up their days with a strategy on Iraq that is 

crying out for some reasonable response which at this time we are 

looking for. 

339 

But I don’t see how adding another major component—something 

as large as the Department of Defense—to engage in this process, 

when we have been begging and crying for comprehensive reform. 

I would hope, again, that in the waning hours of this session that 

we will have an opportunity to take this bill into a room and truly 

address the comprehensive needs of immigration in America. But 

I am disappointed that we can’t find some way to give the necessary tools to an agency that has been maligned—not of their own 

doing but because they have not been given both the staffing, the 

detention facilities—reasonable detention. Not as it has been crafted in this bill. And they have certainly have not been given the 

equipment and I would also say the opportunities of recruitment 

and professional training to add to the excellent job that they are 

attempting to do. And I have seen them do some good work. 

So I am glad that Mr. Cannon has added technology in a small 

way, but I was certainly disappointed—— 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. 

Questions on the amendment offered by the gentleman from 

Utah, Mr. Cannon. Those in favor will say aye. Aye. Opposed no. 

No. 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? 

Mr. CANNON. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Utah seek recognition? 

Mr. CANNON. I have two amendments. I would like unanimous 

consent to offer them en block. Those are amendments Cannon 055 

and 056. 

Chairman SENSENBRENNER. Clerk will report the amendment. 

The CLERK. Amendment to H.R. 4437 offered by Mr. Cannon of 

Utah. 

Page 149, beginning line 17, strike clause 3. 

Amendment to H.R. 4437 offered by Mr. Cannon of Utah. 

Page 152, strike lines 20 through 25 and redesignate subsequent 

paragraphs accordingly. 

Chairman SENSENBRENNER. Without objection, the amendments 

will be considered as en bloc. Hearing none, so ordered. 

[The amendments follow:] 

340 

1

H.L.C.

AMENDMENT TO H.R. 4437

OFFERED BY MR. CANNON OF UTAH

(Page and line numbers refer to SENSENl104 ON DECEMBER 6,

2005 AT 1:23PM)

Page 149, beginning line 17, strike clause (iii).


4437C.AAB
341 

1

H.L.C.

AMENDMENT TO H.R. 4437

OFFERED BY MR. CANNON OF UTAH

(Page and line numbers refer to SENSENl104 ON DECEMBER 6,

2005 AT 1:23PM)

Page 152, strike lines 20 through 25 and redesignate subsequent subparagraphs accordingly.


4437D.AAB
342 

Chairman SENSENBRENNER. The gentleman from Utah is recognized for 5 minutes. 

Mr. BERMAN. Mr. Chairman, I do have a reservation. 

Chairman SENSENBRENNER. Gentleman from California reserves 

a point of order. 

Gentleman from Utah is recognized for 5 minutes. 

Mr. CANNON. Thank you, Mr. Chairman. 

The first amendment would strike the mandatory verification on 

existing employees. 

I want to just start off by saying how much I appreciate the 

Chairman’s incredible work on this issue over a long period of time 

and that in an environment where there has been a great deal of 

other activity, including the Patriot Act which has taken, I think, 

an obscene amount of time; and so I appreciate his work on both 

efforts. But in the case of the basic pilot program the new national 

employment verification system is a good concept. I support that, 

and I hope it will work. 

I can support the prospective use of the program, but I have concerns about a national mandate applying a program that has been 

questioned by the agencies to at least 8 million employers and 140 

million employees. The burden that is created by mandating that 

every employer in the country use the employment verification to 

reverify the work authorization of some 140 million workers is 

more than extremely unfair to the vast majority of law-abiding employers. It would place a significant burden on businesses of every 

size because there are too many unanswered questions about this 

program. 

The GAO studies on this subject earlier this year in August and 

June 2005 indicated that if the basic pilot program is expanded, 

several weaknesses in the program, including its inability to detect 

fraud and DHS delays in entering data into their databases, could 

become more significant and adversely affect a greater number of 

employees and employers. 

DHS responded to the GAO study by saying the testing of alternative of pilots is important; and USCIS believes it is important to 

test and evaluate alternative employment verification systems before we go about creating a new, expensive mandatory national employment verification system. 

CIS officials told GAO that the current basic pilot program may 

not be able to complete timely verifications of work eligibility if the 

numbers of employers using the program were to significantly increase. We have about 3,600 employers using the system now, as 

opposed to 8 million. 

There are some fundamental problems inherent in the basic pilot 

that are not yet worked out. The basic pilot cannot detect identity 

fraud. If an unauthorized worker presents valid documentation 

that belongs to another person authorized to work, the program 

would likely find that person authorized to work. 

Most importantly, we have existing laws on the books that penalize employers who are hiring unauthorized workers. IRCA provided 

sanctions against employers who do not follow the I9 employment 

verification process. 

Under current law, employers are required to reverify the employment eligibility of individuals whose work authorization has 

expired to determine whether the are authorized to continue to 

343 

work. Employers who fail to properly complete, retain or present 

for inspection their I9s face civil fines ranging from a $1,000 to 

$20,000 for violation, and employers who knowingly hire or continue to employ unauthorized aliens also face increased fines. Employers who engage in a pattern of knowingly hiring illegal aliens 

are subject to criminal penalties, including imprisonment. 

The Social Security Administration reports no match letters to 

the IRS, which then investigates and imposes fines for returns filed 

to the IRS that contain a missing or incorrect taxpayer identification number. 

If the existing laws and fines are not being adequately enforced, 

then let’s have a debate about that before we step up a whole new 

program of possible unintended consequences for the burdens it 

places on business and employers. 

On the second amendment that I submitted en bloc, this section 

would eliminate the dramatic increase in penalties for what are 

pure paperwork violations. The current penalties range from $100 

to $1,000. In H.R. 4437, these penalties would increase substantially from a thousand minimum to $25,000 maximum for not 

checking the appropriate box or signing the form. 

We are here today to discuss immigration reform and not impose 

paperwork penalties on every American. The question is, why we 

are increasing penalties 2,500 percent for simple paperwork mistakes that may or may not have any connection to immigration 

problems? This penalty is not for those who are here intentionally 

or intentionally hire illegal workers or those who recruit illegal 

workers. 

My amendment keeps the language and protects against fraudulent uses. If someone is gaming the paperwork, they can be prosecuted under the fraud and conspiracy laws which carry criminal 

penalties. 

I understand that the bill contains a good-faith compliance exception before the imposition of this penalty would occur. But that exception does not take into account that this section is overbroad 

and really doesn’t work with our task at hand, which is to reform 

our immigration system. 

We are adding huge civil penalties to all businesses simply for 

clerical errors. You can be penalized for failing to check the right 

box or you can be penalized for failing to sign the form. 

I urge my colleagues to support both of these amendments and 

vote for them en bloc. And with that, I yield back, Mr. Chairman. 

Chairman SENSENBRENNER. The time of the gentleman is expired. 

The Chair recognizes himself for 5 minutes in opposition to the 

amendments en bloc. These amendments strike the guts of the bill 

and it has this bill and our country go down the slippery slope of 

the mistake that was made in 1986 in the Simpson-Mazzoli bill, 

and that was lack of adequate verification of the eligibility to work 

for people who applied for jobs in the United States. 

The reason Simpson-Mazzoli failed—and we have more undocumented aliens in the United States today than we ever had in the 

early 1980’s—is because there was not a way for employers to 

check whether somebody who was asking for a job was legally in 

the country and eligible to work. 

344 

The first amendment that the gentleman from Utah has offered 

strikes the necessity to check the employment eligibility of already 

existing workers. 

Now the result of his amendment, if it becomes the law, is going 

to create an indentured servant program for undocumented aliens. 

Because if they are working for an existing employer and they are 

undocumented, they can’t get a new job because their Social Security number would be caught up in the employer verification system. That is not the way we should go about dealing with this 

issue. 

The second one, relative to paperwork violations of—the gentleman from Utah seems to think that these violations are trivial 

in nature. They really are not. Because it does require—the current 

immigration law does require employers to examine the work authorization documents in each new hire and attest on the I9 form 

that the new employee is not an unauthorized alien, and the problem is that the fines don’t act as a sufficient deterrent for them to 

do the job right. 

Now, in 1996, we recognized that employees should not be penalized for mere technical violations or mistakes, and there is a goodfaith compliance issue. What we are dealing with with these penalties is not the people who are attempting to comply in good faith 

but the bad actors. Now the bad actors who hire scores or maybe 

even hundreds of undocumented aliens in effect are the 21st century slave masters. I don’t have any soft spot in my heart for them, 

because the 21st century slave masters are operating in just as immoral a manner as the 19th century slave masters were. 

I would ask that the Members vote against the Cannon amendments en bloc and yield back the balance of my time. 

Mr. BERMAN. Would the gentleman yield? 

Chairman SENSENBRENNER. Gentleman from California, Mr. Berman. 

Mr. BERMAN. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. Gentleman is recognized for 5 minutes. 

Mr. BERMAN. I hate opposing an amendment by my friend who 

I have worked on these issues with so much over the past few 

years, the gentleman from Utah. But my comments are particularly directed to the gentleman from California, Mr. Lungren. 

Think back to 1986 and that slippery slope the Chairman made reference to, where the problem in this bill isn’t the idea of 

verification. It is the absence of an earned adjustment program, a 

guest worker program, the kinds of provisions that are in KolbeFlake and Cornyn-Kyl and Kennedy-McCain and that are being 

promoted by President Bush. It is the absence of those provisions. 

What you do with this amendment is you go back to the 86 formulation of we criminalize the presence of these people in this 

country. We make it a new crime in the bill, but the employer can 

continue to employ these criminals as long as he wants, no burdens 

on the employer, if he has somebody employed. 

By the way, every grower who hires—in an industry which is 

predominantly filled with undocumented workers, every grower, 

every time it is a peak season, is rehiring somebody, so this amendment doesn’t even protect that particular employer. 

345 

Don’t fundamentally because of the—the way to correct this bill 

isn’t to give the employers more free passes. It is to deal with the 

presence of 11,000,000 people in this country who are not authorized to work at the present time, to correct that problem and to 

provide future courses of workers with adequate wage protections 

so they don’t displace the jobs of U.S. workers where you have temporary shortages in the future. That is where the amendment 

should be coming to, not destroying the verification process which 

is part of a strategy of dealing with the problem of illegal immigration. We made that mistake in 1986. We are about to do it again. 

Ms. LOFGREN. Would the gentleman yield, Mr. Berman? 

I just want to support your suggestion of opposing the amendment in a slight variation of my thinking on yours that really this 

whole section needs a more comprehensive approach than can be 

accomplished in this amendment, and I have reached the same conclusion as you that we cannot support it. 

I thank the gentleman. 

Mr. BERMAN. Just to reclaim my time. The verification provisions 

aren’t adequate as they are now. There needs to be walls protected 

to make sure the information is not misused, that the privacy of 

citizens is not violated. There are a number of mistakes in the 

verification process, how it gets phased in, how it gets implemented. These are important questions which couldn’t possibly 

have been dealt. We haven’t had the kind of hearings and advice 

from Homeland Security and the Social Security Administration on 

how this will be done. 

But to carve a loophole out for existing employees and say the 

employer doesn’t have to verify them is essentially just going back 

to taking the burden off of the employers, criminalizing the aliens 

and inducing employers to keep on doing the same old thing all 

over again. 

Mr. CANNON. Would the gentleman yield? I want to make a couple of comments. 

I think the rationale behind what we would be doing here is that 

people who are here illegally can’t get another job because of the 

nature of the verification program. So I don’t think of that in terms 

of indentured servitude but rather an opportunity to get straight 

with the law or leave. And, at the same time, it puts an incredible 

burden on the employer. 

I don’t think that—there are some bad actors. Without any question. I want to agree with the Chairman. There are some bad actors out there. But most employers just want to get their product 

out the door, and they want to be able to do it in a way that they 

can make a profit. And that is not bad. In fact, the free market system is the basis for what we do in America. So I would urge the— 

pardon me—— 

Mr. BERMAN. Let me reclaim my time—because it is going to expire in a second—to say then offer an amendment that provides 

some kind of earned adjustment and guest worker status. We can 

debate whether you have to leave the country or not. We can have 

a good discussion about that. Do something to correct the problem. 

Don’t fall back to the 1986 trap of attempting. 

Mr. CANNON. The ’86 was a trap where we had penalties that 

were too great to be enforced. 

346 

Mr. BERMAN. The penalties were unenforceable because we said 

the employers—— 

Chairman SENSENBRENNER. Time of the gentleman from California is expired. 

Does the gentleman from California insist on his point of order. 

Mr. BERMAN. No, I don’t. 

Chairman SENSENBRENNER. The gentleman—other gentleman 

from California, Mr. Lungren, is recognized for 5 minutes. 

Mr. LUNGREN. Thank you, Mr. Chairman. I move to strike the 

last word, and I rise in opposition to the amendment. 

As I listen to the Chairman’s reference to the 1986 Act as well 

as my friend from California’s, I am reminded of the old saying 

that victory has many fathers, while failure is an orphan. I guess 

I am the only one around here who would admit to voting for the 

law back in 1986. 

Mr. BERMAN. I voted for it, too. 

Mr. LUNGREN. I am glad to hear that. Although you are probably 

hurting me with my point with my friends on this side by saying 

that. 

Look, we thought we had reached a balance in 1986. We thought 

we were doing something with the phenomenon that existed of 

those who were in this country illegally at this time and also attempting to try and enforce the law going forward. A critical part 

of that was employer sanctions. 

It is not a partisan failure. It is a bipartisan failure. Democratic 

and Republican administrations have failed to enforce the employer 

sanctions, in part because the will of the people wasn’t there. I 

think the will of the people is now there, and I think we also have 

to create a system that works. 

Back in 1986, Sam Hall, the Democratic Congressman from 

Texas, offered an amendment to actually establish such a 

verification system. I voted against it at that time because I didn’t 

think it was practical, that is, you can actually do it. I think it can 

be done now. I think the pilot project has proven that it can work; 

and if it does—if it has proven its ability to work, then I think we 

ought to enforce it. 

I agree with the gentleman very much on the fact that we will 

ultimately need a guest worker program—whatever you want to 

call it. It is a program of foreign workers that will actually be a 

regulated system that the United States determines the parameters of, which is far better than having the illegal system that we 

have now. And I think, in fact, the employer community will demand that. They will accept, I believe, sanctions of this type, if 

they have that kind of program that meets particular needs. 

Mr. BERMAN. Will the gentleman yield just on that point? 

Mr. LUNGREN. No, I won’t. I don’t have enough time right now. 

On that point, I also realize the political realities, that sometimes 

you have to do certain things that not all people agree with, but 

you can get a consensus for a step. So I am not hiding the fact that 

I believe that, ultimately, in order to have all of this come together, 

you are going to need some sort of system. It can’t be an amnesty. 

It can’t be something like that. It has to be something different. 

And I think we have to have an ongoing system. 

But with respect to this bill, which goes to the question of border 

security and getting some control over the situation that exists 

347 

now, I think the components parts that are in there are, in fact, 

reasonable. If you look at the phase-in of the mandatory nature of 

this section of the bill, it is over a number of years; and there is 

certainly adequate time for us to be able to ensure the other parts 

come together. 

I just would say that, as one who was there at the beginning, in 

1986, of our attempt to try and reach a balanced program, employer sanctions were integral to our attempt. They have not 

worked for a number of reasons. They would be made impossible 

to work I think if we adopted the gentleman from Utah’s amendments here, not that he intends that they not work. And I understand that he believes, as you do, we do need to have some sort 

of verified foreign worker program. 

But, please, we are serious about the problem that confronts us 

right now with illegal immigration. If we are truly serious about 

it, employer sanctions have got to be a component. We have major 

parts of our problem. One is the magnet of employment that pulls 

people here. No doubt about it. We have to do something about it. 

The other half I think is the question of birthright citizenship. 

We are not going to deal with that at this time. I may offer an 

amendment to that and then withdraw it for purposes of discussion. But that is one half of the problem, I believe. 

At least let us be honest. American people really do believe, 

Democrats, Republicans, Independents, no matter what their 

stripe, we ought to do something about the issue. If anybody can 

tell me how we deal with the magnet of employment without having an employer sanctioned program that actually is capable of 

work, I would like to hear it; and I yield to the gentleman from 

Utah if he can tell me that. 

Mr. CANNON. Thank you. 

I think you have said there is a political will. I think that the 

penalties are high enough if we apply the penalties. So raising penalties, especially in areas where its paperwork is difficult, but 

doesn’t the gentleman also feel that over time, if you are verifying 

new employment, we can do it do without shaking down American 

businesses to get to identify for us every person that is here illegally? 

Mr. LUNGREN. I will be happy to reclaim my time. 

I don’t view it as shaking down American business. This is analogous to a situation I faced when I was trying to enforce Proposition 

65 in California. I had the wine industry come to me to beg me to 

sue the entire industry over the question of the presence of lead as 

a result of the caps they used to put on wine bottles, and the reason they asked for me to sue them is they thought that if they had 

an overall comprehensive approach as a result of a settlement—— 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. LUNGREN. One additional minute? 

Chairman SENSENBRENNER. Without objection. 

Mr. LUNGREN. And the point was, as long as they all felt they 

were covered by the same laws, they were all free to do what they 

wanted to do, which was to change the way they put caps on their 

wine bottles and get rid of the lead that leached in wine bottles. 

When I talk to most employers, they say to me, look, if you have 

a law that works, I will follow it. But they all tell me it is a joke 

348 

right now. They say, you give me these documents. You tell me I 

can’t discriminate again people for other indicia, so I don’t. And the 

document may, in fact, be phony. I am not an expert on that. But 

you haven’t given me anything to rely on. If you would give me 

something to rely on, I would do it. 

I think most employers are scrupulous and want to follow the 

law. So I think it is—— 

Chairman SENSENBRENNER. The time of the gentleman has once 

again expired. 

Ms. JACKSON LEE. Mr. Chairman. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. Thank you, Mr. Chairman. 

As you can see, the discussion has gone on so long I have already 

moved up in seniority during the hearing. I would like to yield to 

my colleague from California, Mr. Berman. 

Mr. BERMAN. I thank the gentleman for yielding. 

I just want to contest one point in the otherwise very lucid and 

coherent explanation by the gentleman from California. 

Dan, you are wrong. If the employers can devastate the 

verification program, they won’t be clamoring for a guest worker 

program because they will keep employing undocumented workers, 

illegal immigrants, whatever it is. 

The only reason they are clamoring for a guest worker program 

or for some kind of adjustment program is because they are getting 

nervous about their ability to rely on their existing workforce. The 

moment this amendment passes, they will be quite happy—this 

amendment and a few other refined amendments. 

But let me also make one other point, if the gentleman will continue to yield. 

Make no mistake about it. If this bill were to become law without 

an adjustment program, without a guest worker program, perishable fruits and vegetables in the United States disappear. The 

tourism and hospitality industries, massive disruptions. Home construction in many parts of this country, we know who is doing that. 

Don’t kid yourself. 

When you say, well, sometime down the road we should do a 

guest worker program, you put in tough border enforcements and 

real verification, without that, and you are kissing away huge 

amounts of U.S. industries. And you know it. 

You haven’t given us a coherent reason why you aren’t doing a 

comprehensive approach like the President wants, like the Chairman has suggested in the end needs to be done, like you have acknowledged needs to be done. Why aren’t you doing it at the same 

time so we don’t go through that fundamentally massive disruption 

in our economy. 

Mr. LUNGREN. Would the gentleman yield? 

Mr. SCHIFF. I would be glad to yield. 

Mr. LUNGREN. In response to my friend, I would say I do support 

that; and you know, in 1986, I will agree we didn’t create a perfect 

bill. If the gentleman had joined me in 1986 in having a guest 

worker bill, we wouldn’t be in the problem we are in today. 

Mr. SCHIFF. Reclaiming my time, I would be happy to yield to my 

colleague from California. 

349 

Mr. BERMAN. I joined the gentleman in a good adjustment program for seasonal agriculture workers. The gentleman wanted a 

new, brassier program. 

Mr. LUNGREN. No, the guest worker program. 

Mr. CANNON. Would the gentleman yield? Mr. Schiff, would the 

gentleman yield? 

Mr. SCHIFF. Yes, I would be delighted to yield. 

Mr. CANNON. The benefit of having time in our parliamentary 

system. 

Let me make the point again. This is about reducing one penalty, 

the penalty that relates to paperwork violations, which is going 

from $100 to $25,000. 

The second point—the second piece of the en bloc amendment is 

eliminating the requirement that employers who have already gone 

through the legal processes to identify their employees not be required to go through that—a new process, which, by the way, is not 

clear that it is going to work. And it is going to put them in the 

blocks, not DHS, whoever is creating the system. 

So I would, again, urge my colleagues to think about these 

amendments. These are amendments that will allow business to 

continue to operate thoughtfully and profitably without being 

jerked around by a system that is a little bit harsher than I think 

we actually would want, on reflection. 

Thank you. I yield back to you. 

Mr. SCHIFF. Reclaiming the balance of my time, I just wanted to 

state briefly that I concur with the sentiments expressed by my colleague from the San Fernando Valley. I think this issue ought to 

be addressed in a comprehensive immigration reform bill that addresses all the issues that Mr. Berman enumerated. I have no illusions about this bill in this form being passed into law, will be back 

at the same place next year. But I don’t think this has been a productive exercise, and I yield back to the Chair. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman. 

Ms. JACKSON LEE. Mr. Chairman. 

Chairman SENSENBRENNER. Does the gentlewoman from Texas 

wish to speak on the amendment? 

Ms. JACKSON LEE. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. Then the gentlewoman is recognized 

for 5 minutes. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

I give credit to Mr. Cannon for making a valiant effort to 

unshackle businesses and relieve them of extraordinary requirements, $25,000 and paperwork. But, in doing so, I think that, 

again, I would have hoped our good friend would have joined us in 

the comprehensive approach and, I add, an additional aspect to the 

issue of the guest worker. 

My unreadiness and discomfort is that, even as we speak to the 

issue of the guest worker, it is not secure as it makes it way to the 

Senate. Because the guest worker program to be proposed in the 

Senate may be more of the Cornyn-Kyl approach, which is that individuals must leave the country first before they can ascertain 

their status or develop an opportunity to be a citizen. 

The issue of the gentleman from Utah is to unburden employers 

and unshackle the business community, because I am sure that 

350 

they are in horror as they watch this particular bill pass through 

the process. 

But no one is responding to the question that, whether it be the 

efforts Mr. Cannon is making, they don’t address the comprehensive need that I think needs both an earned access component and 

a guest worker and that we should be sensitive to any guest worker program that may ultimately turn into the leaving of the country. Because rooted families with homes and children in school will 

not be eager and will not participate in that aspect of a guest worker program. 

So I would rather have us join together with guest worker, 

earned access to legalization, if you will, with a recognition that it 

is not a reality to expect 11 million people to take a bus either to 

the north or the south or wherever they might have come to. 

Your amendment, Mr. Cannon, does well to try to relieve the 

business community of severe both pressures and enforcement, if 

we actually even enforce it, but it really doesn’t go to the question 

of what you do with the people they are dealing with. That is why 

I think it has frailties and failures, and I would hope that maybe 

you would join us in looking at it in a more comprehensive manner. 

With that, I yield back. 

Chairman SENSENBRENNER. The question is on the amendments 

en bloc offered by the gentleman from Utah, Mr. Cannon. All those 

in favor, signify by saying aye. Aye. Opposed, no. No. 

The noes appear to have it. 

Mr. CANNON. Mr. Chairman, rather than asking for rollcall vote, 

it sounded to me like there were two ayes, only mine and Mr. 

Chabot’s, in that voice vote. 

Chairman SENSENBRENNER. The Chair’s hearing is not that particular. The noes have it, and the amendment is not agreed to. 

Are there further amendments? Are there further amendments? 

Gentleman from Virginia has an amendment. The Clerk will report his amendment. 

Mr. SCOTT. Mr. Chairman, I have an amendment, Scott VA 062. 

Chairman SENSENBRENNER. Clerk will report the amendment. 

The CLERK. Amendment to H.R. 4437 offered by Mr. Scott of Virginia. 

Add at the end of title VI the following new section: 

Section 408. GAO study—— 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent—— 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment follows:] 

351 


4437E.eps
352 

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. SCOTT. I yield. 

Chairman SENSENBRENNER. This amendment looks like a very 

constructive one, and the Chair is prepared to support it. 

Mr. SCOTT. I yield. 

Chairman SENSENBRENNER. The gentleman yields back the balance of his time. 

The question is on the amendment offered by the gentleman from 

Virginia, Mr. Scott. Those in favor will say Aye. Aye. Opposed, no. 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? Are there further amendments? 

Gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. I have an amendment at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

Mr. SCOTT. Scott VA 061. 

Chairman SENSENBRENNER. The clerk will report Scott VA 061. 

The CLERK. Amendment to H.R. 4437 offered by Mr. Scott of Virginia. 

Page 28, line 12, strike ‘‘less than 3 years nor’’. 

Page 28, line 19, strike, ‘‘less than 3 nor’’. 

Page 29, beginning—— 

Mr. SCOTT. I ask unanimous consent that the amendment be considered as read. 

Chairman SENSENBRENNER. Without objection so ordered. 

[The amendment follows:] 

353 

1

H.L.C.

AMENDMENT TO H.R. 4437

OFFERED BY MR. SCOTT OF VIRGINIA

(Page and line numbers refer to sensenl104 ON 12/6/05 AT

1:23PM)

Page 28, line 12, strike ‘‘less than 3 years nor’’.

Page 28, line 19, strike ‘‘less than 3 nor’’.

Page 29, beginning line 1, strike ‘‘less than 5 nor’’.

Page 29, line 17, strike ‘‘less than 5 nor’’.

Page 30, line 2, strike ‘‘less than 7 nor’’.

Page 30, line 12, strike ‘‘less than 10 nor’’.

Page 30, beginning line 17, strike ‘‘not less than 10

years, or’’.

Page 38, beginning line 7, strike subparagraph (B)

and redesignate subsequent subparagraphs accordingly.

Page 38, beginning line 25, strike subparagraph (A).

Page 39, beginning line 3, strike subparagraph (B).

Page 39, beginning line 9, strike subparagraph (D).

Page 39, beginning line 7, redesignate subparagraph

(C) as subparagraph (A).


4437F.AAB
354 

2

H.L.C.

Page 39, beginning line 13, redesignate subparagraph (E) as subparagraph (B).

Page 41, beginning line 6, strike section 206 and redesignate subsequent sections accordingly.

Page 87, line 11, strike ‘‘at least five years’’ and insert ‘‘not more than 20 years’’.

Page 90, line 6, strike ‘‘less than six months or’’.

Page 90, beginning line 13, strike ‘‘less than six

months or’’.

Page 154, line 22, strike ‘‘less than one year’’ and

insert ‘‘more than two years’’.


4437F.AAC
355 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, just for the public interest, the last amendment 

created a GAO study to—in response to a report on National Public 

Radio questioning health care in our detention centers, and that 

study was adopted. 

Mr. Chairman, this amendment has to do with mandatory minimums, and it goes through and picks and chooses each of the new 

mandatory minimums in this bill. The reason we waived the reading of the bill is that the number of new mandatory minimums in 

the bill took more than a full page of striking this and that. So, 

Mr. Chairman, this removes in one fell swoop all of the mandatory 

minimums in the bill. It keeps the increased maximums in all of 

the bills, but by increasing the maximums we signal to the sentencing commission that they should consider increasing the guideline sentences. And when we do that, Mr. Chairman, the sentencing commission generally complies and adjusts the guidelines. 

The difference between a sentencing guideline floor and a statutory mandatory minimum is that other guideline considerations 

can be brought into account under the guidelines to allow appropriate sentencing for each individual case by the commission and 

the courts, rather than sentencing in the blind by Congress without 

the benefit of the facts and circumstances of the individual case or 

the individual sentence. 

Mr. Chairman, mandatory minimums have been studied extensively and have been found to disrupt the underlying sentencing 

scheme, to discriminate against minorities and waste the taxpayers’ money when compared to traditional sentencing where the 

individual roles and culpabilities can be taken into account. It does 

nothing to those who deserve to be sentenced to longer sentences, 

but it unfairly penalizes those who deserve lesser sentences. 

The Judicial Conference has written Congress over a dozen times 

to point out, Mr. Chairman, that mandatory minimum sentencing 

violates common sense. 

Mr. Chairman, I want to repeat that. 

The Judicial Conference has written Congress over a dozen times 

to point out that mandatory minimum sentencing violates common 

sense. 

Mr. Chairman, the purpose of this bill is to strengthen enforcement of immigration laws and enhance border security. But it is 

hard to see how placing a mandatory minimum sentence on some 

cases after the people have been removed will do anything more 

than just clog up our overcrowded prisons with people whose crime 

may be nothing worse than trying to reunite with their families. 

Mr. Chairman, the passage of this amendment will do nothing to 

eliminate punishment. It will, however, provide that the punishment will be consistent with common sense. So I urge my colleagues to support the amendment. 

I yield back. 

Chairman SENSENBRENNER. Chair recognizes himself briefly. 

This goes to the debate on mandatory minimum sentences that 

the Committee has had repeatedly for almost as long as I have 

been on the Committee, which is longer than anybody but my 

friend from Michigan who is seated to my immediate left. 

356 

Let me just say that one of the more egregious mandatory minimums that the gentleman’s amendment strikes is in the case 

where the offense involved an alien where the offender knew, or 

had reason to believe, that the alien was engaged in terrorist activity or intending to engage in terrorist activity. There is a mandatory minimum of 10 years there. 

I think everybody knows what their philosophical bent is on 

mandatory minimums. Mr. Scott is against them. I am in favor of 

them. I urge the rejection of Mr. Scott’s amendment and yield back 

the balance of my time. 

Questions on Mr. Scott’s amendment? 

All those in favor, signify by saying aye. Aye. Opposed, no. No. 

The noes appear to have it. A rollcall will be ordered. 

Those in favor of the Scott amendment, when your name is 

called, answer aye; those opposed will answer no. And clerk will 

call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus. 

[no response.] 

The CLERK. Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green. 

[no response.] 

The CLERK. Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Mr. Issa. 

357 

[no response.] 

The CLERK. Mr. Flake. 

[no response.] 

The CLERK. Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Mr. Forbes. 

[no response.] 

The CLERK. Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mr. Franks. 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. Boucher. 

[no response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

[no response.] 

The CLERK. Ms. Lofgren. 

[no response.] 

The CLERK. Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters. 

[no response.] 

The CLERK. Mr. Meehan. 

[no response.] 

The CLERK. Mr. Delahunt. 

[no response.] 

The CLERK. Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. 

Mr. Weiner. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Mr. Schiff. 

Mr. SCHIFF. Aye. 

358 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Ms. Wasserman Schultz. 

[no response.] 

The CLERK. Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Further Members in the Chamber 

wish to cast their votes? 

Gentleman from California, Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. Gentleman from Wisconsin, Mr. 

Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa, No. 

Chairman SENSENBRENNER. Gentleman from Massachusetts, Mr. 

Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Chairman SENSENBRENNER. Gentleman from Arizona, Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Chairman SENSENBRENNER. Further Members in the Chamber 

wish to cast or change their votes? 

If not, the clerk will report. 

Gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Chairman SENSENBRENNER. Clerk will try again to report. 

The CLERK. Mr. Chairman, there are 12 ayes and 20 nays. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments? 

The gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I have 

an amendment at the desk. 

Chairman SENSENBRENNER. Clerk will report the amendment. 

Ms. JACKSON LEE. 100. 

The CLERK. Amendment to H.R. 4437 offered by Ms. Jackson Lee 

of Texas. 

At the end of title II, insert the following: 

Section 210. Establishment of a special task force for coordinating and distributing information on fraudulent immigration documents. 

359 

Ms. JACKSON LEE. Mr. Chairman, I ask that the amendment be 

considered as read. 

Chairman SENSENBRENNER. Without objection. 

[The amendment follows:] 

360 


4437G1.eps
361 


4437G2.eps
362 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. JACKSON LEE. I thank you very much, Mr. Chairman. 

Chairman SENSENBRENNER. Will the gentlewoman yield? 

Ms. JACKSON LEE. I will yield. 

Chairman SENSENBRENNER. The Chair is happy to accept this 

amendment. It is a constructive addition to the bill. And I thank 

the gentlewoman for yielding. 

Ms. JACKSON LEE. I thank the gentleman. 

It addresses the question of fraudulent documents and provides 

a singular database and as well as provides assessment of trends. 

And, with that, I yield back. 

Chairman SENSENBRENNER. The question is on agreement of the 

amendment offered by the gentleman woman of Texas. 

All those in favor, signify by saying aye. Aye. Opposed, no. No. 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? 

The gentleman from Indiana, Mr. Hostettler. 

Mr. HOSTETTLER. Mr. Chairman, I have an amendment at the 

desk designated number 44. 

Chairman SENSENBRENNER. Clerk will report the amendment. 

The CLERK. Amendment to H.R. 4437 offered by Mr. Hostettler 

of Indiana. 

At the end of title VII, add the following new section: 

Section 709. Sense of Congress. 

It is the sense of Congress that there is little—— 

Mr. HOSTETTLER. Mr. Chairman, I ask unanimous consent that 

the amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment follows:] 

363 

1

H.L.C.

AMENDMENT TO H.R. 4437

OFFERED BY MR. HOSTETTLER OF INDIANA

At the end of title VII, add the following new section:

1 SEC. 709. SENSE OF CONGRESS.

2 It is the sense of Congress that there is little empir3 ical evidence to support the notion that new immigrants

4 are taking large numbers of jobs that United States work5 ers do not want to do.


4437H.AAB
364 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, my amendment would add an 

important sense of Congress to this legislation. 

In a hearing that the Subcommittee on Immigration, Border Security, and Claims held on May 4th earlier this year, we learned 

that there are no jobs that Americans will not do and that immigration—especially illegal immigration—has had a tremendous impact on the ability of many Americans to find work or improve 

their families’ economic status. 

Steven Camarota, a researcher with the Center for Immigration 

Studies, found that, quote, by significantly increasing the supply of 

unskilled workers during the recession between 2000, 2004, immigration may be making it more difficult for similar American workers to improve their situation end quote. 

Paul Harrington is the Associate Director of the Center for Labor 

Market Studies and Professor of Economics and Education at 

Northeastern University in Boston. Professor Harrington testified 

at that same hearing that, quote, there is little empirical evidence 

to support the notion that new immigrants are taking large numbers of jobs that Americans do not want to do. End quote. 

On the contrary, Mr. Harrington’s recent study on the impact of 

immigration on the American job market concludes that, quote, 

given large job losses among the Nation’s teens, 20- to 24-year-olds 

with no 4-year degree, black males and poorly educated native-born 

men, it is clear that native-born workers have been displaced in recent years. End quote. 

Before creating the guest worker program that we are considering maybe later next year, it is imperative that we remember 

that there are large numbers of unemployed Americans who do 

want jobs. The argument that there are jobs Americans just won’t 

do is a false statement. 

For example, in job categories such as construction labor, building maintenance and food preparation, immigration added 1.1 million adult workers between 2000 and 2004. But there were nearly 

2 million unemployed adult natives in these very same occupations 

in 2004. About two-thirds of the new immigrant workers in these 

occupations are illegal aliens. 

In the area of construction specifically, for example, 24 percent 

of the workers are immigrants, while there is a 12.7 percent native 

unemployment rate. 

In the food preparation sector, 23 percent of workers are immigrants, while there is a 9.3 percent native unemployment rate. 

In farming, fishing and forestry, 36 percent of these occupations 

are comprised by immigrants, while there is an almost 12 percent 

native unemployment rate. 

Mr. Chairman, let’s not forget these facts and figures as we contemplate the legislation before us and that we will consider later. 

I urge my colleagues to support this amendment and yield back 

the balance of my time. 

[12:00 p.m.] 

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes to strike the last word. 

Let me say that this is an interesting issue to debate. I believe 

that many people have strong views on the subject and there are 

365 

many variations of those views on the subject of the impact of illegal immigration on the job market and on the unemployment rate, 

particularly amongst American workers. I think that as this debate 

goes forward, we ought to get more opinions and more empirical 

evidence on this. 

I would suggest to the gentleman from Indiana that his amendment is premature. I can give him a commitment that we will be 

looking into this issue in a little bit greater detail as time goes on 

and suggest that he withdraw the amendment at the present time. 

And I yield to the gentleman from Indiana. 

Mr. HOSTETTLER. Mr. Chairman, I ask unanimous consent that 

the amendment be withdrawn at this time. 

Chairman SENSENBRENNER. Without objection, so ordered. Are 

there further amendments? 

Mr. BERMAN. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. I seek recognition for purposes of seeking an advisory opinion. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes, although he might not get an answer. 

Mr. BERMAN. There is an interesting proposal that has been introduced by a distinguished Member of this Committee, Mr. Flake, 

along with Mr. Kolbe and Mr. Guiterrez, that provides a comprehensive approach to this issue. If one were to take—if one were 

to offer as an amendment the adjustment of the new H-5B U.S. immigration visa program for people now in the U.S. and the guest 

worker titles of that provision and offer it as an amendment, would 

it in the eyes of the Chair be germane to this bill? 

Chairman SENSENBRENNER. Probably not. 

Mr. BERMAN. Why not? This is a bill that covers a lot of different 

issues. Why isn’t the whole INA open? 

Chairman SENSENBRENNER. This is a bill that deals with border 

security. I have stated that we will be dealing with issues such as 

employment and guest workers at a later time. I think that we 

need to work a lot more on refining how we deal with this, and I 

can say that I think it is probably not germane but it definitely is 

not ripe. There is going to be a lot of discussion that will be had 

on the whole issue of the employment base in this country. I think, 

however, the border security issue is the one that is of top priority, 

as well as fixing the holes in the employment verification system 

developed following the passage of the Simpson-Mazzoli Act 19 

years ago. 

Mr. BERMAN. Mr. Chairman, if I may just continue this academic 

discussion a little longer. I understand if this were simply a bill on 

border security; but when you—as you indicate, this bill is about 

border security and holes in employer verification from the 86 bill, 

there were adjustment programs in the 86 bill, there were guest 

worker program changes in the 86 bill. Once you move beyond border security to verification, what is the basis for ruling—I don’t 

want you to think I accept your argument that it would not be ripe, 

because one thing I feel very certain about is it would be ripe to 

offer it, but whether it would be germane I think is debatable. Why 

doesn’t this cover so many other issues now that the whole INA 

would be open? 

366 

Chairman SENSENBRENNER. Well, the Chair can only rule on a 

specific amendment that is offered. The Chair has also stated that 

he supports a properly framed guest worker program. I think that 

we have got to make sure it is properly framed lest we go down 

the road of the mistakes made in the 1986 bill. I have not ruled 

out philosophically a guest worker program later on in the consideration of the entire issue of the immigration system and how it 

needs to be fixed. I am just saying that I don’t think the time is 

ripe to be able to do it in the context of a border security bill. 

Mr. BERMAN. Well, but it is not just a border security bill, it is 

a verification bill. The consequences of legislating a mandatory 

verification system without dealing with the 11 million people in 

this country and future temporary worker needs in this country 

has devastating consequences. One thing I cannot understand is 

how one can accept that it is needed but it isn’t needed, both at 

the same time. 

Chairman SENSENBRENNER. Well, if the gentleman will yield further, the 11 million people who are undocumented are in this country illegally. We have to deal with that issue and figure out how 

to work through it. 

Mr. BERMAN. I agree, and that is exactly right. The border security issue for the most part is not about the 11 million people now 

in this country except insofar as it is an inducement for other 

members of their family to try to join them. It is about if we get 

a verification system that ends up disqualifying millions and millions of people now in the workforce, what is the alternative and 

how are we going to deal with the consequences of that? The two 

are inextricably related. 

Chairman SENSENBRENNER. If the gentleman will yield further, 

I don’t believe that they are as inextricably related as Siamese 

twins are joined, and that is why I am a believer of the philosophy 

that the camel’s back can only have so many straws, and if we deal 

with this in one package, it will be much more difficult to get 218 

votes to pass it. 

And the gentleman’s time has expired. Does the gentleman wish 

additional time? 

Mr. BERMAN. No. 

Chairman SENSENBRENNER. Are there further amendments? 

Does the gentlewoman from Texas have an amendment? 

Ms. JACKSON LEE. Yes. It is amendment number 186. I intend 

to offer and withdraw. 

The CLERK. Amendment to H.R. 4437 offered by Ms. Jackson Lee 

of Texas: 

Amend section 402 to read as follows: Section 402, expansion and 

effective management of detention facilities. In general, subject to 

the ability of appropriations—— 

Chairman SENSENBRENNER. The gentleman from Texas reserves 

a point of order. Without objection, the amendment is considered 

as read and the gentlewoman from Texas is recognized for 5 minutes. 

[The amendment follows:] 

367 

1

H.L.C.

AMENDMENT TO H.R. 4437

OFFERED BY MS. JACKSON-LEE OF TEXAS

(Border Protection, Antiterrorism, and Illegal Immigration

Control Act of 2005)

Amend section 402 to read as follows:

1 SEC. 402. EXPANSION AND EFFECTIVE MANAGEMENT OF

2 DETENTION FACILITIES.

3 (a) IN GENERAL.—Subject to the availability of ap4 propriations, the Secretary of Homeland Security shall

5 fully utilize—

6 (1) all available detention facilities operated or

7 contracted by the Department of Homeland Secu8 rity; and

9 (2) all possible options to cost effectively in10 crease available detention capacities, including the

11 use of temporary detention facilities, the use of

12 State and local correctional facilities, private space,

13 and secure alternatives to detention (in accordance

14 with subsection (b)).

15 (b) SECURE ALTERNATIVES TO DETENTION PRO16 GRAM.—

17 (1) NATURE OF THE PROGRAM.—For purposes

18 of this section, the secure alternatives to detention


4437I.AAB
368 

2

H.L.C.

1 referred to in subsection (a) is a program under

2 which eligible aliens are released to the custody of

3 suitable individual or organizational sponsors who

4 will supervise them, use appropriate safeguards to

5 prevent them from absconding, and ensure that they

6 make required appearances.

7 (2) PROGRAM DEVELOPMENT.—The program

8 shall be developed in accordance with the following

9 guidelines:

10 (A) The Secretary shall design the pro11 gram in consultation with nongovernmental or12 ganizations and academic experts in both the

13 immigration and the criminal justice fields.

14 Consideration should be given to methods that

15 have proven successful in appearance assistance

16 programs, such as the appearance assistance

17 program developed by the Vera Institute and

18 the Department of Homeland Security’s Inten19 sive Supervision Appearance Program.

20 (B) The program shall utilize a continuum

21 of alternatives based on the alien’s need for su22 pervision, including placement of the alien with

23 an individual or organizational sponsor, a su24 pervised group home, or in a supervised, nonVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00372 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

4437I.AAC
369 

3

H.L.C.

1 penal community setting that has guards sta2 tioned along its perimeter.

3 (C) The Secretary shall enter into con4 tracts with nongovernmental organizations and

5 individuals to implement the secure alternatives

6 to detention program.

7 (c) ELIGIBILITY AND OPERATIONS.—

8 (1) SELECTION OF PARTICIPANTS.—The Sec9 retary shall select aliens to participate in the pro10 gram from designated groups specified in paragraph

11 (4) if the Secretary determines that such aliens are

12 not flight risks or dangers to the community.

13 (2) VOLUNTARY PARTICIPATION.—An alien’s

14 participation in the program is voluntary and shall

15 not confer any rights or benefits to the alien under

16 the Immigration and Nationality Act (8 U.S.C. 1101

17 et seq.).

18 (3) LIMITATION ON PARTICIPATION.—

19 (A) IN GENERAL.—Only aliens who are in

20 expedited removal proceedings under section

21 236 of the Immigration and Nationality Act (8

22 U.S.C. 1226) may participate in the program.

23 (B) RULES OF CONSTRUCTION.—

24 (i) ALIENS APPLYING FOR ASYLUM.—

25 Aliens who have established a credible fear


4437I.AAD
370 

4

H.L.C.

1 of persecution and have been referred to

2 the Executive Office for Immigration Re3 view for an asylum hearing shall not be

4 considered to be in expedited removal pro5 ceedings and the custody status of such

6 aliens after service of a Notice to Appear

7 shall be determined in accordance with the

8 procedures governing aliens in removal

9 proceedings under section 240 of such Act

10 (8 U.S.C. 1229a).

11 (ii) UNACCOMPANIED ALIEN CHIL12 DREN.—Unaccompanied alien children (as

13 defined in section 462(g)(2) of the Home14 land Security Act (6 U.S.C. 279(g)(2)))

15 shall be considered to be in the care and

16 exclusive custody of the Department of

17 Health and Human Services and shall not

18 be subject to expedited removal and shall

19 not be permitted to participate in the pro20 gram.

21 (4) DESIGNATED GROUPS.—The designated

22 groups referred to in paragraph (1) are the fol23 lowing:


4437I.AAE
371 

5

H.L.C.

1 (A) Alien parents who are being detained

2 with one or more of their children, and their de3 tained children.

4 (B) Aliens who have serious medical or

5 mental health needs.

6 (C) Aliens who are mentally retarded or

7 autistic.

8 (D) Pregnant alien women.

9 (E) Elderly aliens who are over the age of

10 65.

11 (F) Aliens placed in expedited removal pro12 ceedings after being rescued from trafficking or

13 criminal operations by Government authorities.

14 (G) Other groups designated in regulations

15 promulgated by the Secretary.

16 (5) IMPLEMENTING REGULATIONS.—Not later

17 than 180 days after the date of the enactment of

18 this Act, the Secretary shall promulgate regulations

19 to implement the secure alternatives to detention

20 program and to standardize the care and treatment

21 of aliens in immigration custody based on the Deten22 tion Operations Manual of the Department of

23 Homeland Security.

24 (6) DECISIONS REGARDING PROGRAM NOT RE25 VIEWABLE.—The decisions of the Secretary regardVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00375 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1

4437I.AAF
372 

6

H.L.C.

1 ing when to utilize the program and to what extent

2 and the selection of aliens to participate in the pro3 gram shall not be subject to administrative or judi4 cial review.

5 (d) REPORTING REQUIREMENTS.—Not later than

6 180 days after the date of the enactment of this Act and

7 annually thereafter, the Secretary shall submit to the

8 Committee on Homeland Security of the House of Rep9 resentatives, the Committee on the Judiciary of the House

10 of Representatives, the Committee on Homeland Security

11 and Governmental Affairs of the Senate, and the Com12 mittee on the Judiciary of the Senate a report that details

13 all policies, regulations, and actions taken to comply with

14 the provisions in this section, including maximizing deten15 tion capacity and increasing the cost-effectiveness of de16 tention by implementing the secure alternatives to deten17 tion program, and a description of efforts taken to ensure

18 that all aliens in expedited removal proceedings are resid19 ing under conditions that are safe, secure, and healthy.

20 (e) AUTHORIZATION OF APPROPRIATIONS.—There

21 are authorized to be appropriated to the Secretary of

22 Homeland Security such sums as may be necessary to

23 carry out this section. Amounts appropriated pursuant to

24 this section shall remain available until expended.


4437I.AAG
373 

Ms. JACKSON LEE. Thank you, Mr. Chairman. Thank you for 

your kindness. As I indicated, I intend to offer and withdraw and 

hope my colleagues will consider this as we move toward the floor. 

The underlying bill has sections dealing with alternative utilization 

of facilities for detention beds. In that, we open the jailhouse doors, 

which may be a portion of a solution for those now new detainees, 

including more than OTM, and the raging numbers that will come 

and, of course, we indicate that the detention is mandatory, with 

little opportunity for release. 

This amendment is straightforward. It provides instructions to 

the Secretary of Homeland Security to design a program in consultation with nongovernmental organizations and academic experts in both the immigration and criminal justice fields in order 

to give some criteria and guidelines for the kind of facilities that 

we will be using. 

Those facilities will be holding the elderly, women, children, individuals who may be ill, maybe sexual predators. And to be able to 

utilize any form of a detention facility with no protections, no 

guidelines, no firewalls between those who would prey upon those 

victims or those subject to being victims, any of you who have gone 

to some of the commercial centers where detainees are, you will 

note that they are in are large open rooms, open bunk beds, and 

certainly those facilities are under the Federal jurisdiction. 

Who knows what will come up to be utilized in this new legislation? They will not be controlled by Border Patrol or Federal resources, they will be controlled by local authorities or private entities. 

And so, my friends, I think that if we are going to talk about 

massive detaining of this wave of undocumented individuals, then 

I think minimally you need criteria, you need instructions, you 

need guidelines for the safety and care of those who will be detained. 

At this time, Mr. Chairman, I ask respectfully that this amendment be withdrawn and I hope that as we move toward the floor 

and this bill includes a provision of earned access or documentation 

of our undocumented individuals in this country and we look to 

comprehensive immigration form, a provision such as providing 

guidance to the new holders of immigrants undocumented, if that 

is the case, if that happens, that we be respectful of the fact they 

must be safely secured, children safely secured, women must be 

safely secured, the elderly and the frail, because that would not be 

the approach that Americans would want to take. With that I yield 

back and ask—— 

Chairman SENSENBRENNER. Without objection the amendment is 

withdrawn. Are there further amendments? 

Ms. SA ́ NCHEZ. Mr. Chairman. 

Chairman SENSENBRENNER. Does the gentlewoman from California have an amendment? 

Ms. SA ́ NCHEZ. No, but I would like to strike the last word on the 

underlying bill. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. 

I came to this hearing with every intention to mark up your border enforcement and immigration reform bill, the Border ProtecVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00377 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
374 

tion, Antiterrorism and Illegal Immigration Control Act of 2005, 

but to my surprise this bill really has nothing to do with border 

enforcement or immigration reform. On the contrary, this bill will 

jeopardize our national security by implementing the worst provisions of the CLEAR Act. 

Mr. Chairman, with all due respect, if your intention was to pass 

the CLEAR Act, why didn’t you just call this the CLEAR Act? As 

we all know, efforts to pass the CLEAR Act last session were derailed because many national security experts, law enforcement 

agencies and associations, local governments, faith-based institutions and community groups opposed it. And why did they oppose 

the CLEAR Act? Because they recognized that making police enforce immigration laws would have a detrimental effect on community policing and public safety. 

Clearly this bill uses the pretext of national security to bootstrap 

unimmigrant and, quite frankly, unAmerican policies into this bill. 

It merely perpetuates our failed immigration policies. Twenty years 

of shortsighted enforcement on immigration legislation has created 

the largest illegal population in our Nation’s history, and unfortunately H.R. 4437 is just more of the same. 

Since 1996 the Government has consistently taken an enforcement-only approach that includes many of the same flawed policies 

that H.R. 4437 would expand. These include using ever more sophisticated military-style surveillance equipment, physical barriers, 

including walls, fences and highways doubling as border barriers, 

and dramatically increasing the number of Border Patrol agents. 

Enforcement alone does not work. As we know, throwing more 

money at our broken immigration system and putting more agents 

at the border hasn’t led to fewer undocumented immigrants, it has 

increased that number. Enforcement only doesn’t work. 

From 1993 to 2004, the number of Border Patrol agents tripled 

from about 4,000 to 11,000 and the amount of spending has gone 

up five times, from 740 million to 3.8 billion, yet the number of undocumented immigrants doubled from 4.5 million to 9.3 million. 

Enforcement only doesn’t work. 

More of the same old poise will not solve our immigration problems, it will however continue to erode the basic civil liberties and 

human rights not only of migrants but of legal immigrants and citizens as well. 

Let me highlight three of the most troubling provisions of this 

bill that are from the CLEAR Act. First, this bill makes unlawful 

presence a crime as well as an aggravated felony under section 

203. Since State and local police can assist in the enforcement of 

Federal criminal laws, this bill could lead to an open season on 

anyone in this country who appears to be foreign, and that is left 

up to the discretion of the enforcing officer. 

Immigrants will no longer know if it is safe to call local police 

or not, because law enforcement officials could possibly question 

their status. As we know, local police departments do not want to 

become immigration enforcers because it silences immigrant crime 

victims and witnesses to helping them solve crimes. According to 

the California Police Chief’s Association, the result of this provision 

will set back years of community policing efforts and attempts by 

law enforcement agencies to build goodwill in the community. 

375 

This provision will make communities less safe, not more safe. 

And it gets worse. There is a provision in this bill that would permit State and local agents to use homeland security grants for immigration enforcement activities pursuant to an agreement with 

the Federal Government. This provision basically robs Peter to pay 

Paul. First responders receiving homeland security funds need 

every dime to prevent and respond to emergencies. This provision 

raids their covers to encourage State and local police to be immigration agents. 

Congress has already cut first responder funding. The State 

Homeland Security Grant Program has been cut in half, from 1.1 

billion to $550 million, and the Urban Area Security Initiative has 

been cut by another $120 million. For the sake of national security, 

our State and local governments cannot afford further dilution of 

these critical funds. This bill is far from being pro-security and proenforcement. The three CLEAR Act provisions I mentioned in this 

bill actually undermine enforcement and security. 

Basically we need to ask ourselves on this Committee this question: What kind of America do we want? Do we want an America 

where we have mass deportations? Do we want an America where 

police officers can randomly ask people who look ‘‘other’’ to produce 

identification to prove their legal status? Do we want an America 

where people can be detained for life when their home country is 

unwilling to take them back? Do we want an America where Americans will have to carry national identification cards to travel, 

work, or just walk down the street? I sincerely hope not. But all 

the things I just mentioned are possible if we pass H.R. 4437, and 

for this reason I urge my colleagues to oppose this bill. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. 

Ms. SA ́ NCHEZ. I would ask for unanimous consent for an additional minute. 

Chairman SENSENBRENNER. Without objection. 

Ms. SA ́ NCHEZ. It is in the Book of Matthew that Jesus tells us, 

‘‘For whatsoever you do to the lowest of my brethren, you do unto 

me.’’ I think this is a very sad day and that America can do better. 

With my concluding comments, I would just ask for unanimous 

consent to include letters from the Congressional Hispanic Caucus, 

the American Jewish Committee, the Human Rights Watch, National Council of LaRaza, who all oppose this bill, and of 150 State 

and local law enforcement agencies, associations and governments 

who are opposed to the CLEAR Act, into the record. I yield back 

my time. 

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Mr. GOHMERT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert, is recognized for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. I appreciate the question, what kind of America do we want? Let me tell you, as a 

former judge, some of the things that we dealt with and some of 

the things that law enforcement dealt with. For one thing, when 

you have a man that comes to your court who has been arrested 

time and time and time again for driving while intoxicated and he 

has never been deported because they don’t have adequate agents 

to do that kind of thing, one in the entire area of East Texas, and 

it is made clear by the Federal Government that local law enforcement are not allowed to take immigration actions, it gets pretty 

frustrating to local law enforcement; and the people would like a 

safe America, so the people that were hit by this gentleman who 

is illegally in the United States, not only harmed them, he gave my 

Hispanic friends, people cast a giant shadow over all of a particular 

group just because he happens to have a similar appearance, and 

it is grossly unfair. But people deserve a safe America. 

So when I sent the man to prison because he had harmed people 

while intoxicated for the umpteenth time, and then see him back 

in my court in just a matter of months, because as soon as he got 

to prison finally the Federal authorities decided to take action and 

they deported him, but they didn’t wait long enough at the border 

to watch him come back across and come to our county so that he 

could hit other citizens while intoxicated. 

I said if they are going to pull him out of prison, let us send him 

to treatment so maybe there be less chance. He made it through 

a few months of treatment before INS picked him up and deported 

him, so heaven knows who all he may have harmed after that. 

This kind of law will allow local law enforcement to assist the 

Federal law enforcement in making America safer. Hispanics, people who have come over from Mexico, they deserve not to have illegal people who do wrong acts cast a pall over them. We have hardworking friends and Americans who deserve to be protected, of 

every race, creed, color, national origin, gender, and that is what 

this bill is trying to do. When it comes to what kind of America we 

want, it ought to be safer for every race, creed, national origin or 

gender, and I am proud that we are actually trying to take action 

to do that. I yield back. 

Chairman SENSENBRENNER. Are there further amendments? 

Ms. LOFGREN. Mr. Chairman. 

Chairman SENSENBRENNER. Do you have an amendment? 

Ms. LOFGREN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. I think we are winding down, it appears to me, 

but there are a couple of other items in the underlying bill that I 

really feel need to be discussed and brought to the attention of 

Members and the public generally. And I am going to mention two 

of them: section 407, the expansion of the expedited removal provision; as well as section 805 which is, I think, a completely unworkable proposal relative to reviews of BIA decisions. 

First, on the expedited removal provision, I think it is important 

to note that expedited removal is an abbreviated process that basiVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00408 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
405 

cally is no process it all. It is an officer who is playing an immigration function who essentially acts as prosecutor, judge, jury, the entire decision maker. There is no review, there is no due process 

whatsoever. 

Now, an argument can be made that that is an appropriate process at the border and we could have a discussion about that. If you 

are in the middle of the desert and a group of people is walking 

across, certain assumptions can be made about that when people 

do not present themselves at a port of entry without documentation. But what the bill proposes to do is to treat that border process, to expand it 100 miles from the border. 

Now, I am from California, northern California, which is more 

than 100 miles from the southern land border, but in the Homeland Security Committee we had a substantial discussion about 

what in California is 100 miles from the border, and it includes 

Disneyland. Disneyland is not the border; it is not the border, and 

the issue. And my colleague Mr. Lungren and I engaged in a dialogue about what our concern was about the due process of illegal 

aliens. I think it is important to note we are concerned about the 

due process of rights of American citizens, American citizens and 

legal residents of the United States; because there is no process to 

protect the rights of Americans who could be perceived by an individual as not lawfully present. 

And so I guarantee you if this becomes law, and I don’t think it 

will, ultimately we will deport Americans and there will be no recourse for those Americans. We will deport legal residents and it 

will have a deleterious impact on our country and it certainly does 

not mete what we have come to know as fortunate people who are 

Americans the due process that is required in the American Constitution. 

Now to section 805. This is truly an extraordinary provision. This 

section sets up a new system in which a single court of appeals 

judge must prereview the case to certify whether it should be reviewed in Federal court under the standard of, quote, ‘‘substantial 

showing that the petition for review is likely to be granted,’’ unquote. If the prereview judge fails to issue a certificate of 

reviewability, the petition for review is deemed denied. No explanation is required. The decision is completely unreviewable. 

Now, we know and we have had discussions about the Ninth Circuit and how overwhelmed they are. I have met with the justices 

of the Ninth Circuit and they have explained to me and other 

members of the California delegation that part of the problem they 

are dealing with is the massive inflow of immigration appeals. And 

the reason why those appeals are coming is that the Administration basically destroyed the Bureau of Immigration Appeals. And 

we have immigration law judges that are issuing one-sentence decisions. They are not being appropriately reviewed. We have got BIA 

judges doing one-sentence decisions, and the process has broken 

down; but those cases don’t go away, they simply show up in the 

court of appeals which has jurisdiction. 

I think that to think, even with our limited habeas provisions in 

here, that we will avoid burdening the Federal courts by section 

805 is a big mistake. There is a habeas, and I think it is unfortunate that all habeas jurisdiction would be lodged in the District of 

Columbia, no matter where the case arises, but I can guarantee 

406 

you that that will be where these cases flow to. And if we have got 

a sludge of cases in the Ninth Circuit, we are going to see that 

same thing occur in the District of Columbia. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. Are there further amendments? 

Mr. BERMAN. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California seek recognition? 

Mr. BERMAN. I have an amendment at the desk, Mr. Chairman. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

The CLERK. Amendment to H.R. 4437 offered by Mr. Berman: 

At the end, insert the following and make technical and conforming changes, including changing title and section numbers, as 

necessary. 

Title III—— 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and the gentleman from California will be recognized for 5 minutes. 

[The amendment follows:] 

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Mr. BERMAN. Yes, Mr. Chairman. This is the Kolbe-Flake—two 

titles of the Kolbe-Flake legislation, H.R. 2330 dealing with Titles 

III and VII. Title III is the essential worker visa program which 

provides for the admission of essential workers based on marketbased numerical limitations with provisions for employer obligations with respect to these workers, protection of workers, pot 

righting for their adjustment to lawful permanent resident status, 

and creating a willing worker/willing employer electronic job registry. 

Title VII creates the H-5B nonimmigrants visa program dealing 

with U.S.—workers in the U.S. not now in status, to give them a 

process to adjust status, both come forward, provide their true 

identities, be fingerprinted, have background checks, and then 

allow them temporary visas to work and condition their status on 

their continuing to work; and if at such time as they complete their 

obligations with respect to payment of fines and their obligations 

to work, makes them eligible for adjustment to permanent resident 

status. 

This amendment fills the glaring hole and the fundamental deficiency in the bill before us by truly making what is an unworkable 

program into a meaningful and comprehensive solution with some 

very tough border enforcement provisions, a mandatory verification 

provision, and a provision by which the 11 million people in this 

country whose presence keeps the bill, without this provision, from 

having any positive impacts. It provides that which President Bush 

has spoken about, which a number of key Senators have, and 

which I think almost every objective observer of the crisis we are 

in thinks is essential to its conclusion. I ask for the Committee’s 

adoption of Mr. Flake’s negotiated language. 

Mr. FLAKE. Mr. Chairman. 

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes in opposition to the amendment. 

The Chair knew that the gentleman from California couldn’t resist his impulses to offer this amendment. The Chair tried to advise the gentleman from California in our earlier colloquy that it 

was a bad idea to offer this amendment because it is premature 

and things need to be worked out. 

This amendment should be rejected if only for one reason. Section 306 grants amnesty to 11 million illegal aliens. The amendment turns a border security enforcement and employer verification 

bill into a mass amnesty bill. Amnesty did not work in the Simpson-Mazzoli Act in 1986, it won’t work again in this bill. Amnesty 

only encourages more people to come to the United States illegally, 

whether it is illegal entry under the fence, or a legal entry, and 

then overstaying a visa. 

I think that the gentleman offering this amendment, if he persists in it, is going to set back the efforts to get a reasonable guest 

worker program that is politically acceptable to the Congress and 

the American public a huge amount. I would urge a strong ‘‘no’’ 

vote against this amendment and yield back the balance of my 

time. 

Mr. BERMAN. Would the gentleman yield? 

Chairman SENSENBRENNER. Of course. 

Mr. BERMAN. The word ‘‘amnesty’’ is an interesting one. It is 

used to oppose things that people don’t like. I am curious, since the 

434 

gentleman is on record as envisioning a context in which at some 

point in the future we will need a guest worker program, to the extent that such a program allowed people who entered this country 

illegally to participate in the program. Is that program that the 

gentleman envisions—and understanding he hasn’t worked out the 

specifics yet—is that an amnesty program? 

Chairman SENSENBRENNER. The devil is in the details. 

Mr. BERMAN. Yes. 

Chairman SENSENBRENNER. You have got the details in this one, 

and it is an amnesty program. It is called adjustment of status. But 

adjustment of status for people who are illegally in the United 

States is amnesty. And if it quacks like amnesty, it adjusts like 

amnesty, it is amnesty. 

Mr. BERMAN. If the gentleman would continue to yield. I would 

like to tell him a conversation I had with the gentleman from Colorado, Mr. Tancredo, a couple of years ago. 

Chairman SENSENBRENNER. If the gentleman will yield back, 

that should have been enlightening. So tell us. 

Mr. BERMAN. The gentleman from Colorado liked to use the term 

‘‘amnesty.’’ So I did it in the context of a piece of legislation Mr. 

Cannon knows well, worked with me on, called Ag Jobs. And he 

was saying that is amnesty. John Cornyn of Texas has proposed an 

amnesty, everybody is proposing amnesty, according to Mr. 

Tancredo. 

I said in the context of Ag Jobs, Tom, if you had a choice, you 

had entered the country illegally, and you were told you had a 

choice of two different kinds of punishment, 30 days in county jail 

or working for 360 days in agriculture, harvesting crops, which one 

would you take? Because Mr. Tancredo is an honest and direct person, he said I would take 30 days in county jail over 360 days picking crops in agriculture. 

I suggest to you anything which is conditioned on future work, 

that requires fines to pay off because of the original illegal entry 

and creates a series of conditions, including ensuring that you had 

committed no other illegal acts while you were in this country, that 

you are checked through on any watch list that exists, that you 

come out, that you become fingerprinted, you give your true identity, I would suggest that is not within my concept of amnesty; that 

is a conditional adjustment based on not simply what has happened in the past, but things you have to do in the future in order 

to make the conditions of that adjustment of status. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. ISSA. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa. 

Mr. ISSA. Thank you, Mr. Chairman, and I too rise in strong opposition to this amendment. And I would like to clarify two things. 

First of all, President Bush has made it clear that he does not want 

an amnesty, and this falls well within the definition of amnesty by 

President Bush. 

Having said that, I would like to respond to my colleague from 

California by saying that we can define very clearly for you what 

is amnesty, and it is fairly straightforward. Whether or not we 

have a guest worker program that uses existing workers in this 

country who are here out of status illegally, or we bring them in, 

435 

if we are going to bring them in and tell them you can get a green 

card and become a citizen, then it is not a guest worker program. 

The definition of a guest worker program must be one in which you 

are a temporary guest and you go home. If you take a guest worker 

program and convert it to an immigration program, then by definition it is no longer just a guest worker program. 

So I would say to the gentleman, no matter where the source of 

those workers, if you want to call something a guest worker program, you genuinely have to recognize that it cannot mix and 

match immigration. 

Just one more thing. 

Mr. BERMAN. Will the gentleman yield? 

Mr. ISSA. One more thing before I yield. I am not somebody who 

believes in pure democracy. I have often said people of my district 

send me here to use my best judgment. However, in my district I 

did a poll of 8,788 people, so it was a very comprehensive survey, 

and I did this with the Government money just to find out some 

important points of where people stood. 

And on the question of supporting requiring employers to use the 

employment eligibility verification system, I had 81.5 percent of 

those 8,000 or so respondents who said yes, they have to do it. So 

that, as one of the underlying underpinnings of this bill, is clearly 

something that crosses party lines, crosses economic lines. I probably had illegals who said they should be doing it, it is so many 

people. 

Additionally, the question of amnesty is opposed by 65 percent. 

And when asked would you support an adjustment, yes, I had 42 

percent, but only for—on the question asked as though it was an 

adjustment to work here, not to immigrate. 

I would ask unanimous consent that the survey be allowed to be 

placed in the record and I would yield to the gentleman without objection. 

Chairman SENSENBRENNER. Without objection. 

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Mr. BERMAN. I thank the gentleman for yielding. So in the gentleman’s very interesting and flexible definition of amnesty, if you 

have entered this country illegally and worked in a legal status, 

and then you go home and apply for the guest worker program and 

come into this country, that is okay. 

Mr. ISSA. Reclaiming my time. To answer the gentleman’s question, the amendment that we are faced with that I am speaking on 

is not just a guest worker program but, in fact, an adjustment of 

status to permanent residents—hold on—allowing for citizenship. 

That is what is clearly the definition of amnesty. That is clearly 

what the voters in my district and, for that matter, the voters in 

your district oppose. We can have a civilized discussion on a guest 

worker program. I look forward to that, I will support that. However, today what we are doing is taking a broken system both at 

the border and interior and trying to fix it. This is not only not germane but it is clearly an amnesty, and I would yield to the gentleman. 

Mr. BERMAN. There is nothing in any dictionary definition that 

describes amnesty as if it leads to permanent citizenship; it is 

okay. Amnesty is about forgiving people for their illegal acts. 

Mr. ISSA. Reclaiming my time. The gentleman from California 

did a good job of explaining Mr. Tancredo’s position that everything 

is amnesty. This Committee, I believe on a bipartisan basis, is willing to set aside one strict definition and find a way to fix a broken—or absence of a sufficient guest worker program. However, 

clearly the amendment offered here today has fatal flaws at a Presidential level, at a House level, at a Senate level, and certainly 

with the Committee Chairman, and that is the reason I am urging 

people to strongly oppose this. And I yield back. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. Let me be sure I understand the opposition to the 

Flake bill, which is what we are discussing here. This is the Republican Flake approach to this problem. It apparently is amnesty. 

You apparently believe the Flake approach represents amnesty and 

it should be rejected, and you just articulated that this is a position 

that has been redacted by this House. I am not sure the gentleman 

from Arizona would agree with that, but let us assume for a moment that we accept that premise. 

I imagine next we will able to consider the McCain approach. 

Would that be amnesty? Would that be something that has universally been rejected? Well, I have heard President Bush say positive 

things about the McCain approach. Perhaps there is an Issa approach, perhaps a Sensenbrenner approach. We are having a markup now of immigration legislation which has been described as 

solving the problems of immigration laws. Let’s go at it. If you believe that the Flake Republican approach, which we are considering 

now, is not the correct approach—— 

Mr. ISSA. Would the gentleman yield? 

Mr. WEINER. Certainly. 

Mr. ISSA. I apologize, but we are not really having an immigration markup. 

Mr. WEINER. I reclaim my time. You have finally struck upon a 

chord of truth. We are not having an immigration markup today. 

I am glad somebody has conceded that on that side of the aisle. We 

439 

are trying. It has been explained that we were, so we are going to 

try now. And now you have the Republican Flake amendment in 

front of you, his bill that we are going to have a chance now—Mr. 

Flake was out of the room, so let me—I don’t know if you heard 

it. This may comes as news to you, but it has been described, 

Flake, as dead on arrival; doesn’t represent the view of the House, 

the view of the President, the view of the country, because it is amnesty. 

Here it is. We believe that the Flake amendment should be debated and we are doing it now. We have also—we also perhaps 

have heard that the President doesn’t support the Flake approach. 

I have read the President, who doesn’t have a bill, by the way, prefers the McCain Republican approach to this problem. We have 

heard Mr. Issa say he opposes the Tancredo Republican approach 

to this problem. Maybe it is about time we decide what the Republican governing position is on this matter. We have a moment here 

to do it. We have the Flake amendment before us. If you think it 

should be amended and voted down, I happen to agree with you. 

If you think it should be amended and voted down, bring it on 

‘‘Chicky,’’ let’s do it. 

If you think the McCain, which I think we will offer next, should 

be amended and voted down, that is fine. But you are running out 

of the various approaches that the Republicans call their immigration policy. 

Mr. ISSA. Would the gentleman yield? Since you have invoked my 

name ‘‘Chicky,’’ I just wanted to quickly respond. When I said—— 

Chairman SENSENBRENNER. The Members will conduct their debate in a parliamentarily decorous manner. 

Mr. ISSA. Yes, Mr. Chairman. 

To respond to your statement, it is to amend the Immigration 

Nationality Act to strengthen enforcement of immigration laws and 

enhance border security, and that is the reason I am saying it is 

not about immigration. Hopefully I am consistent. 

Mr. WEINER. Let me reclaim my time. You can walk backwards 

out of a gaffe as long as you want, but I want to talk about what 

we are doing here. What we are doing here is trying to sort out 

what the Republican policy is on immigration. Now, obviously, 

there is a widespread schizophrenia problem going on even between you and the gentleman to your right. You have described 

Mr. Flake’s bill as essentially not representing the House, not representing the President. Well, let’s find that out. The only way is 

by marking it up and voting on it. 

And so right there—we are in a strange position. We are waiting 

to see what the governing party wants to do on this very important 

issue that now six people have referred to as we desperately need 

to revisit at some point. Let’s do it. 

Mr. BERMAN. Will the gentleman yield? 

Mr. WEINER. Certainly I would. 

Mr. BERMAN. Isn’t this the party that keeps telling the minority 

party, what is your proposal, where is your alternative? They are 

the majority party. They know that the bill they are passing can 

never become law because of the devastating impacts on the economy. At least half of them have already acknowledged here we 

need a guest worker program. But do they have one in this bill? 

No. 

440 

Mr. WEINER. If I could just reclaim my time. But at least maybe 

we can sort out at least in that little corner of the lower row of the 

Republican Party here, exactly what the view is; and a good way 

is let’s have a vote. Let’s resoundingly reject, as Mr. Issa said, the 

Flake approach. 

Mr. ISSA. Will the gentleman further yield? 

Mr. WEINER. I have now yielded twice and gotten nothing fruitful 

from it. 

Mr. ISSA. I was going to give you something fruitful. I look forward to working with Mr. Tancredo and Mr. Flake and myself to 

find compromises. 

Chairman SENSENBRENNER. The time of the gentleman from New 

York has expired. 

Mr. WEINER. Request unanimous consent for 1 additional 

minute. 

Chairman SENSENBRENNER. Without objection. 

Mr. WEINER. I am pleased to hear, and I am sure the Nation 

breathes a sigh of relief to know you are willing to work out the 

Republican agenda on immigration. We are here at the House Judiciary Committee dealing with legislation on immigration. What 

time better than now? The gentleman whose amendment is being 

considered right now is just right now right next to you. You can 

even introduce yourself to him. 

You have characterized his legislation in the most derisive way: 

it is amnesty. It is not the policy of this country and never will be. 

The President doesn’t support it. 

Here it is. We are having a markup, we have a chance. We are 

going to, by hook or crook, determine what the Republican view is 

on immigration reform. You say you want to do it, let’s go ahead 

and do it. 

Chairman SENSENBRENNER. The gentleman’s time has once again 

expired. 

Mr. FLAKE. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Arizona has 

come to life. For what purpose—the gentleman is recognized for 5 

minutes. 

Mr. FLAKE. I appreciate the Chairman giving me this chance to 

talk about my amendment, my bill. Let me just say that when I 

was elected 5 years ago, the first thing I said while I was campaigning and said consistently since I have been here, if we want 

to secure the border, we have to have a legal channel for workers 

to come and then return home. I believed that then, I believe that 

now. 

I am not in favor of amnesty, I have never proposed amnesty. I 

agree with Mr. Berman’s definition. An amnesty is an unconditional pardon for a breach of law. I am not offering that. Under our 

legislation, if you are here illegally and wish to stay on a temporary basis, you pay a fine of $1,000 and you go to the back of 

the line. And amnesty is what we did in 1986 when we said, if you 

can prove you have been here for 5 years, you have got a shortcut 

to a green card. 

That is not what we are proposing here. I would submit those 

who are so quick to call our bill amnesty and to say that anything 

less than enforcing the current law is amnesty might want to consider that the current law means that we ought to round everybody 

441 

up, ship them home, and subject them to either a 3- or 10-year bar. 

Unless you are willing to offer that legislation and the funding to 

do it, you are offering amnesty. That is the bottom line. 

So when these terms are thrown around like that, think of what 

you are saying. The current law calls for removal, deportation, and 

a bar from reentry. For those who say, well, let’s just pretend that 

they are not here, let’s keep them in the shadows, that is more of 

an amnesty than anything in my view. To pretend they are not 

here and let’s say I will count to 100 and if you go back to your 

home country and apply from there, then we are not going to give 

you amnesty, that is simply wrong and we shouldn’t be engaging 

in that charade. 

I am committed to our approach. I think that if we want a secure 

border, you have to have a legal channel for workers to come and 

go and to recognize the best thing we can do for national security, 

for the economy, and for humanitarian reasons is to bring those 

who are in the shadows out and not pretend that they don’t exist. 

But now I also believe, as Ecclesiastes said in the Bible, there’s 

a time and a place under everything under heaven. Now is not the 

time, unfortunately, for our bill to be debated in the Judiciary 

Committee. I would love to see it pass, and I believe that we will. 

We are committed to having a guest worker plan. I don’t often say 

this, but thank goodness for the Senate. I don’t think I have ever 

said that. 

Mr. WEINER. Will the gentleman yield? 

Mr. CHABOT. Take those words down. 

Mr. FLAKE. I would encourage the gentleman from California—— 

Chairman SENSENBRENNER. Was that a serious demand that the 

gentleman’s words be taken down? 

Mr. CHABOT. I will withdraw. 

Mr. FLAKE. I would urge the gentleman from California if he 

cares about moving the ball ahead, I would love to do it comprehensively. I am not in favor of doing this now. I would rather see the 

whole thing done, but that is not where it is done. I am smart 

enough to count votes. And I would like to see the ball move ahead 

and finally to address the immigration problem that we have. 

With that, I would encourage the Member to withdraw his 

amendment. 

Mr. BERMAN. May I respond? 

Chairman SENSENBRENNER. The gentleman from Arizona will 

have to yield. 

Mr. FLAKE. I will yield 30 seconds to the gentleman from California. 

Mr. BERMAN. Thirty? Sixty. I am not going to withdraw it and 

here’s why. Because the speaker has said, a number of people here 

have said, we have to have this. I started out the comments in this 

entire discussion by talking about stupid. I would be embarrassed 

to say I know this bill is missing something, but we are not going 

to go through the effort to try and resolve and fill in what is missing in the hopes that the Senate would do the right thing. 

If I thought bringing this to a vote now would hurt what your 

ultimate goal is, I wouldn’t bring it to a vote. It won’t. It will just 

show the vacuous nature of what the majority in the House is trying to do. People who know this is a wrong approach shouldn’t be 

voting for this bill. People who want the tough border enforcement 

442 

and the verification and the adjustment and guest worker features 

as part of a comprehensive approach, like the President has said, 

like Senator Cornyn has said, like Senator McCain has said, Senator Kyl has said, they should not be voting for this—— 

Chairman SENSENBRENNER. The time of the gentleman from Arizona has expired. 

Mr. DELAHUNT. Mr. Chairman. Mr. Delahunt from Massachusetts. 

Chairman SENSENBRENNER. Oh, yes. The gentleman is recognized for 5 minutes. 

Mr. DELAHUNT. You will be happy to know, Mr. Chairman, that 

I am going to yield my time to the gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. I thank the gentleman from Massachusetts and I 

thank the gentleman from Arizona for making that fervent appeal 

to his colleague from California. Unfortunately, the one he made 

the appeal to was the wrong gentleman from California. 

You did a very good job of rebutting what Mr. Issa had to say. 

You gave an articulate explanation about the importance of the 

issue that you believe in. I have got news for you, Mr. Flake; you 

don’t have the votes there by any stretch. You probably don’t have 

a lot of votes here, but at least we want to have a debate about 

this issue. But if you believe for a moment, for a moment, that this 

issue is going to somehow become more appealing to the leadership 

of this Committee or the leadership of the House as it gets closer 

to the election, or as months go by, you are wrong. This is it. This 

is our moment that we have in this Committee to deal with these 

important matters, and it is also a moment that you have to persuade your colleagues to do it. 

This notion that somehow things will get better if we do the political thing, the partisan thing now, or the easy thing or the thing 

that sells the best on TV now, and we will do the difficult complex 

things later on, it is myth. 

The President’s bill—have you seen the President’s bill? There is 

no President’s bill. He has been talking about it for some time. He 

recently gave a round of speeches to perhaps try to divert from 

other subjects. He has no bill. I think you deserve credit for stepping up and saying I have some ideas, ideas that maybe I don’t 

like, but let’s do it and let’s do it now. 

The way that your bill is being dismissed out of hand as not even 

worthy of consideration because it has amnesty all over it, I think 

that deserves to be debated as well. You had a completely different 

explanation of your view of amnesty than Mr. Issa’s view of amnesty. 

If not now, when? I think it is important to know that this is in 

your control. The Republicans control the House, they control the 

Senate, they control the White House, they control the judiciary. 

This is the moment. Do you think it is going to get better in years 

to come? This is a moment of national attention. The President deserves credit for bringing that attention. This is a moment that this 

Committee has said, before we break, let’s do something about immigration reform. Now you have a chance to persuade people to 

vote for your amendment, let’s get to it. Let’s talk about the things 

that we need to do to deal with this economy, to deal with this ongoing complex problem. 

443 

You are going to look back, I fear, I say to the gentleman from 

Arizona, look back and say, boy, that was it, that was the Judiciary 

Committee of the House of Representatives considering the tough 

issues of immigration that plague the people of Arizona, that 

plague this economy, and, frankly, weigh on us as a moral matter 

in this country. And you are going to realize that day in early December, that was your last crack at it? 

Well, I think we have another choice. The other choice is to take 

your amendment, consider it, figure out ways we can reach consensus. I daresay there are very strong views held by your side, 

there are others over here as well, and let’s have something good 

come out of this. 

If you don’t like Flake, I say to Mr. Issa, go ahead, bring something else up. If you want to amend Flake, if you want to take out 

the part about amnesty, let’s have a debate. But this is the burden 

of leadership. You guys run the House of Representatives, you run 

the Congress, your President has stood up and said do something 

about the vexing issues of immigration in this country. Well, this 

is the moment. The Judiciary Committee in whose jurisdiction this 

piece of legislation that has been ruled previously in this debate to 

be germane, let’s go ahead and do it. And we have the foremost 

spokesman in the House, Mr. Flake’s amendment before us. You 

don’t want this withdrawn, Mr. Flake; you want this passed. You 

don’t want your bill withdrawn, you want us to vote yes on it. You 

are on TV, writing articles, debating every single day. You want a 

‘‘yes’’ vote. 

I want Mr. Flake to stand up and say I want a ‘‘yes’’ vote on Mr. 

Flake. I can’t even get Mr. Flake to say he wants a yes. Mr. Issa 

said no, Mr. Sensenbrenner says he wants a ‘‘no’’ vote on Flake. 

You don’t want Flake withdrawn, you want the Republican bill on 

the immigration voted yes, don’t you? Isn’t that why you are here? 

Isn’t that why your constituents sent you here, to get a ‘‘yes’’ vote 

on Flake bills and amendments? 

This is your moment. You have a Flake bill, a Flake amendment 

right now in front of us at this moment. Now you want to withdraw 

Flake. You don’t. You want ‘‘yes’’ on Flake. And I don’t understand; 

if we can’t get Flake to ask for a ‘‘yes’’ on Flake, who can we ask? 

So we have already heard Mr. Issa say ‘‘no’’ on Flake. We have 

heard Sensenbrenner say ‘‘no’’ on Flake. We have heard Berman 

say, ‘‘You are going to have a vote on Flake.’’ I hope at least Flake 

votes ‘‘yes’’ on Flake, because you may be the only one left here 

that will. And I yield back. 

Mr. GOHMERT. Will the gentleman yield? Just for clarity, when 

you use the words ‘‘Flake bill,’’ are you using ‘‘Flake’’ as an adjective or a proper noun? 

Chairman SENSENBRENNER. And with that, the time of the gentleman has now expired. The question is on the Berman amendment. Those in favor will say aye. 

Opposed to the Berman amendment will say no. 

The noes appear to have to have it. 

Mr. BERMAN. Mr. Chairman, on that we would like a rollcall 

vote. 

Chairman SENSENBRENNER. rollcall will be ordered. Those in 

favor of the Berman amendment—and that is not the Flake amendVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00447 Fmt 6659 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
444 

ment, but the Berman amendment—those in favor will signify by 

saying aye, those opposed, no; and the clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. 

Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren. 

Mr. LUNGREN. No on Berman, yes on Flake. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Mr. Issa. 

Mr. ISSA. I am with Flake. No on Berman. 

The CLERK. Mr. Issa, no. 

Mr. Flake. 

Mr. FLAKE. Present. 

The CLERK. Mr. Flake, present. 

Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

445 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mr. Franks. 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

[No response.] 

The CLERK. Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

[No response.] 

The CLERK. Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. 

Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. 

Mr. Weiner. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

446 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Ms. Wasserman Schultz. 

[No response.] 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

Further Members who wish to cast or change their votes? 

The gentleman from New York, Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes? 

If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 13 ayes, 22 nays and one 

present. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments. 

Does the gentleman from Maryland have an amendment? 

Mr. VAN HOLLEN. I do not, but I move to strike the last word. 

Chairman SENSENBRENNER. Gentleman is recognized for 5 minutes. 

Mr. VAN HOLLEN. I thank you, Mr. Chairman. As I take it we 

are wrapping up, I just want to say a few words having attended 

this entire markup. 

First, I would like to say I think all of us agree we need to address the border security problems. I think you can find bipartisan 

support for that issue. We have a porous border; we need to do 

more about it, and I think there are actually many provisions in 

this bill that address those issues. 

There are also—as my colleagues have pointed out; I am not 

going to go in detail—many provisions in this bill that I think take 

us very much in the wrong direction. And, frankly, having just received this bill about 48 hours ago, I don’t think there is—there are 

very few Members of this Committee who have had a chance to 

read this entire thing. And I think it is inappropriate to be moving 

forward so rapidly on a bill that we have had no opportunity to review. 

Contrast that to Mr. Flake’s bill, which has been before this body 

for a long time. 

I think all of us had an opportunity to review Mr. Flake’s proposal and other proposals, and the glaring hole in this whole debate in this Committee is the fact that we are not dealing with this 

in a comprehensive manner. 

Mr. Flake mentioned the fact that sometimes he wished, you 

know, God bless the Senate from time to time. And unfortunately, 

from my perspective, that is not only true on this issue but on 

many other issues. But it is very true on this issue. 

Because you know, Mr. Flake—and I have great respect for you 

and your approach to issue—you know that this body over here is 

just taking up this particular piece of it because there is not a consensus on your side of the aisle to address this other very important piece. 

447 

And you have also stated and the President has stated, if we 

don’t deal comprehensively with this issue, we are not going to be 

able to address the issue of immigration problems generally. 

This train is leaving the station in the House. And I think it is 

a sad day when the House and everybody on this Committee, the 

great House Judiciary Committee, decides to abdicate its responsibility on a different issue and punt it over to the Senate and hope 

one day we are going to go to conference with the Senate that does 

its job, and we will have only dealt with half of the problem over 

here. 

I think the American people should be ashamed of the fact that 

we have refused to address this issue over here in the way all us 

know it should be addressed. 

And finally, to the extent people are proposing this is some kind 

of issue that deals with homeland security, yes, of course, there is 

a homeland security component to the border. But the 9/11 Commission just issued its final report. They issued a series of Ds and 

Fs with respect to this Congress’ follow-through and their recommendations. 

None of those Ds and Fs related to any provision in this bill that 

we are dealing with today. They dealt with a whole range of other 

issues that are much more urgent on the national security agenda. 

And, again, not one of the Ds and Fs related to something that is 

being addressed in this bill. 

To present this to the American people as if this addresses our 

national security and homeland security issues, when the Commission, on a bipartisan basis, that was set up to look at this issue, 

has not even put this on their report card as something that should 

be addressed, I think is a scandal and misleads the American public. 

This is a very important issue. It should be dealt with as you, 

Mr. Flake, and others have tried to deal with it in a thoughtful 

manner. This was our opportunity today to address it in a thoughtful manner, and it is unfortunate that we are not doing so. And for 

that reason I am going to be voting ‘‘no’’ on final passage. 

Chairman SENSENBRENNER. The Chair will remind Members that 

they can only be recognized once on a single question. The question 

is on the underlying base bill, and Members who have been recognized on that question heretofore must ask unanimous consent to 

speak a second time. 

Ms. JACKSON LEE. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Ms. JACKSON LEE. It is offered and withdrawn. 

The CLERK. Mr. Chairman, I have two amendments. 

Ms. JACKSON LEE. It is amendment No. 189. 

[The amendment follows:] 

448 

1

H.L.C.

AMENDMENT TO H.R. 4377

OFFERED BY MS. JACKSON-LEE OF TEXAS

In section 401(c), add at the end the following new

paragraph:

1 (3) UNACCOMPANIED ALIEN CHILD.—The man2 datory detention requirement in subsection (a) does

3 not apply to any alien who is an unaccompanied

4 alien child, as defined in section 462(g)(2) of the

5 Homeland Security Act of 2002 (6 U.S.C.

6 279(g)(2)).


4437K.AAB
449 

Chairman SENSENBRENNER. Clerk will report the amendment. 

The CLERK. Amendment to H.R. 4377, offered by Ms. JacksonLee of Texas. In section 401(c) add at the end of the following new 

paragraph: (3), Unaccompanied alien child—The mandatory detention requirements in subsection—— 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentlewoman will be recognized for 5 minutes. 

Ms. JACKSON LEE. I thank the distinguished gentleman very 

much. 

The previous discussion, I felt fully comfortable in embracing Mr. 

Berman/Mr. Flake’s amendment because frankly it, in essence, put 

at the very pinnacle of this discussion the reality of what we have 

to confront. 

And I guess my question to Mr. Flake, as I discussed my amendment, is, no matter how we move through this process, and whether we move to the Senate, we will have to confront the issue of the 

Republicans redefining ‘‘amnesty.’’ And to Mr. Issa’s poll, if you 

malign, stigmatize and demonize a structure that will allow the 

regularity or making more regular the immigration system, you are 

going to get polling of 100 percent, a poll to any form of regulation. 

And so I would ask Mr. Flake, what is his intent to even convince the Senate? Because he well knows my good friend and esteemed Senator in Texas and his Senator in Arizona intend to put 

forward a guest worker program that sends 11 million people back 

to their respective countries. Very unrealistic. 

And so this debate should have occurred not only today, but it 

should have occurred in regular order in the Subcommittee on Immigration, and it did not occur. 

Also, it did not address, if you will, the pulling of migrant workers to the United States because of their negative economic posture 

in the country where they come from. It has no provisions to prevent the 11 million migrant workers who are in the shadows of this 

immigration system to come out of the shadow. 

What is Mr. Flake’s position on arguing that amnesty has been 

demonized? In fact, ‘‘amnesty’’ now has been equated to ‘‘terror.’’ 

You will never get anything passed in the Senate because unless 

you break the shackles of the definition of what ‘‘amnesty’’ means— 

and I would ask Mr. Flake whether he intends to do that. 

I have had legislation, as many others have had, H.R. 2092, and 

I intend respectively to offer those amendments on the floor that 

realistically look at earned access to legalization, which should be 

a real partner to the guest worker program. Because what it addresses is the question of putting criteria on undocumented individuals, no criminal background, community service, to get them in 

line. That speaks to security. That is what the 9/11 Commission 

was speaking about, that we are not secure; we don’t know who is 

in this country. 

The amendment that is before us speaks to, I think unfortunately, an indictment in this bill. For the first time in history, we 

will have mandatory detainment for children. My amendment attempted to correct that. 

I hope my colleagues will look at this amendment when we go 

to the floor. Because I asked the question before, what is the criteria for all of the alternative detainment centers that we expect 

450 

to use on this bill? Will we be using barns? Will we be using people’s homes? Will there be any legitimate criteria to protect the 

most vulnerable? And because we are detaining children 

mandatorily under this bill, it seems to me we have great concern. 

And so, Mr. Flake, I wish you had taken the opportunity to defend this concept of earned access to legalization. In your instance, 

it is the guest worker program. And I wish you had defended, if 

you will, the reality of your provisions, because you tell me whether 

or not you expect to deport 11 million. 

And might I say that we have utilized the basic premise of the 

debate on immigrants coming from the southern border. There are 

South Asian immigrants. There are immigrants from the Mideast. 

There are immigrants from Ireland, from Poland. Poland is outraged that they have been one of our strongest allies in the war 

on terror and we won’t open up the doors on the visa waiver program. 

I will be happy to yield in just a moment, Mr. Flake. 

Mr. FLAKE. Thank you. 

Ms. JACKSON LEE. The real question of this debate today is one 

we should have premised and started in the Subcommittee of jurisdiction. 

Secondarily, I don’t know how we leave this room speaking only 

of border security and labeling any form of regularizing the nondocumented individuals, not putting them in front of the legal line 

individuals, but recognizing their presence here, their ownership of 

property, and we demonize it by either suggesting ‘‘amnesty’’ 

equals to ‘‘terror’’ or amnesty is unacceptable. 

Then, Mr. Flake, your bill will not pass in the Senate, either. I 

yield to you for a moment. 

Mr. FLAKE. Thank you for yielding the last 15 seconds, I think. 

Ms. JACKSON LEE. Just about. And I reclaim the 10. 

Mr. FLAKE. I mentioned that we need a comprehensive approach. 

But part of the problem with the approach that was just offered by 

Mr. Berman is that it only offers two sections of our bill. There are 

other sections of our bill that need to be offered, debated and 

passed. And I would argue to pass the whole thing. 

The problem is, part of the reason there isn’t an amnesty to do 

what we are doing is because we say, if you are going through the 

legal, orderly process in your home country—— 

Ms. JACKSON LEE. I ask for an additional minute. 

Chairman SENSENBRENNER. Without objection. 

Mr. FLAKE. If you are going through the legal, orderly process in 

your home country, you won’t be placed in line in back of these who 

are here illegally now. So another section of our bill deals with 

backlog reduction, for example. 

That is why you need a comprehensive approach, not just the two 

sections that were offered. 

There was a clever way to do it, and I am glad the debate was 

had. And I am grateful to Mr. Berman for speaking up. 

Mr. BERMAN. Would you like me to offer the bill? 

Ms. JACKSON LEE. Let me just say to you, I think you would 

have had a friendly response if you had offered to amend Mr. Berman’s—— 

Chairman SENSENBRENNER. The time of the gentlewoman has 

once again expired. 

451 

Ms. JACKSON LEE. My amendment—— 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. 

Ms. JACKSON LEE. I ask to withdraw my amendment, Mr. Chairman. 

Chairman SENSENBRENNER. Without objection, the amendment is 

withdrawn. 

Are there further amendments? 

Mr. KING. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Iowa seek recognition? 

Mr. KING. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 4437 offered by Mr. King of 

Iowa. In section 247—excuse me, 274A(b)(7)(F)(ii), of the Immigration and Nationality Act, as added by section 701(a) of the bill, insert [page 133, line 15] ‘‘within the time period specified in subparagraphs (B) and (C),’’ after ‘‘investigation.’’ 

[The amendment follows:] 

452 

1

H.L.C.

AMENDMENT TO H.R. 4437

OFFERED BY MR. KING OF IOWA

[page and line numbers refer to print of December 6, 2005,

1:23 PM]

In section 274A(b)(7)(F)(ii) of the Immigration and

Nationality Act, as added by section 701(a) of the bill,

insert [page 133, line 15] ‘‘, within the time periods specified in subparagraphs (B) and (C),’’ after ‘‘investigation’’.


4437L.AAB
453 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Smith, reserves a point of order. 

The gentleman from Iowa is recognized for 5 minutes. 

Mr. KING. Thank you Mr. Chairman. 

My amendment addresses, I will say, a hole that is created by 

the bill. The bill requires the employers to use the employment 

verification system. 

Chairman SENSENBRENNER. Will the gentleman from Iowa yield? 

Mr. KING. I would, Mr. Chairman. 

Chairman SENSENBRENNER. My understanding is that this requires suspicious—or investigation within 10 days of suspicious use 

of Social Security numbers in the basic pilot program. I think it is 

an improvement to the bill. And I am prepared to accept it. 

Mr. KING. I would thank the Chairman and conclude my opening 

remarks and yield back the balance of my time. 

Chairman SENSENBRENNER. Gentleman’s time is yielded back. 

The question is on adoption of the amendment offered by the gentleman from Iowa, Mr. King. 

All those in favor, signify by saying aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? If there are no further amendments, a reporting quorum is present. The question occurs on the 

motion to report the bill, H.R. 4437, favorably as amended. 

All those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. 

Two Members are requesting a rollcall. Those in favor of reporting the bill as amended favorably will, as your name is, called answer aye. Those opposed, no. And the clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. 

Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

454 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Mr. Inglis. 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Mr. Keller. 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. 

Mr. Issa. 

[No response.] 

The CLERK. Mr. Flake. 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. 

Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. 

Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. 

Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. 

Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

455 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. 

Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt, no. 

Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. 

Mr. Weiner. 

Mr. WEINER. Yes on Flake. No on this. 

The CLERK. Mr. Weiner, no. 

Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Further Members in the Chamber wish to cast or change their 

votes? 

Gentleman from California, Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes? 

If not, the clerk will report. 

Gentlelady from California, Ms. Waters? 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. 

Mr. Chairman, there are 23 ayes and 15 noes. 

Chairman SENSENBRENNER. And the motion to report the bill favorably as amended is agreed to. Without objection, the bill will be 

reported favorably to the House in the form of a single amendment 

in the nature of a substitute incorporating the amendments adopted here today. 

456 

Without objection, the staff is directed to make any technical and 

conforming changes, and all Members will be given 2 days, as provided by the rules, in which to submit additional dissenting supplemental or minority views. 

This concludes the business of the meeting as noticed. And without objection, the Committee stands adjourned. 

[Whereupon, at 1:15 p.m., the Committee was adjourned.] 

(457) 

ADDITIONAL VIEWS

If circumstances would have allowed me to have been recognized 

today in the Committee, I would have made the point that I agree 

that our immigration process is sorely in need of overhaul, from the 

top to the bottom. 

I have spent the last 60 days on an immigration tour throughout 

the Fourth District examining the impact of our current immigration policy on health care, education, construction, manufacturing, 

farms and government agencies. All total, we visited more than a 

dozen stops and hosted six town meetings. The results are clear 

that we need comprehensive and effective immigration laws. At 

every stop, we saw the effects of laws that are not enforced or not 

enforceable; are not working or are inadequately supported by personnel or infrastructure. 

This leads to my first concern with this bill. It is not a comprehensive solution. I can appreciate the need for tougher penalties 

and better deterrents for those that violate immigration laws, but 

penalties must be supported by additional enforcement mechanisms to ensure the penalties can be implemented. 

This proposal also strengthens one critically weak area of the 

current system by requiring employers to verify the eligibility status of prospective employees, and thankfully, technology makes 

this easier than ever. 

It is my hope that the Senate will add a provision for a guest 

worker program—one that does not include amnesty, but offers a 

way that those who have entered our country illegally can pay restitution, leave the country to adjust status, even carry out community service or pay some other penalty in order to earn the privilege of being restored as legal residents. 

Other areas of concern I had with the bill are the provisions for 

mandatory minimum sentences. Mandatory minimums do a disservice to the judicial decision-making process, which is already 

guided by sentencing guidelines. I would hope that these mandatory minimum sentences will be addressed during conference with 

the Senate, which is less prone to rely upon mandatory-minimum 

sentences. 

I eagerly look forward to working with the Committee leadership 

on future issues. 

BOB INGLIS. 

(459) 

1 At the outset, we must object that Majority leadership provided Committee members with 

a copy of the 169-page bill only two days prior to the Committee hearing which necessarily limited both Republicans’ and Democrats’ ability to thoroughly review and debate the bill on its 

merits at the Committee hearing. Given the importance of the matters at hand, we believe that 

the Committee should have been given an opportunity for a full consideration and the opportunity to craft comprehensive legislation. 

DISSENTING VIEWS

We believe that a strong border security policy is an absolute and 

immediate necessity for this Nation. However, without bipartisan 

comprehensive immigration reform to bring eleven million people 

out of the shadows with a path to legal immigration status and full 

integration in our society, the gaping hole in our border security 

will continue to grow unabated. 

The Nation has an immediate crisis along the Southern border 

as evidenced by the recent declarations of emergency by the governors of those states. The Homeland Security Committee passed 

a border security bill to concerning these issues. On the way to our 

Committee, however, the legislation was made far worse and less 

effective by anti-immigrant provisions which have been hastily 

added to this legislation and have no bearing on security on the 

border.1 This pursuit of short-term political gain will ultimately 

prove counter-productive, since the legislation will distract the Department of Homeland Security and divert it limited resources 

from the core mission of protecting this Nation against terrorism. 

Indeed, the bipartisan 9/11 Commission has not identified any of 

the excessive provisions that the Majority have included in this bill 

as necessary for homeland security. We recognize that Americans 

deserve real border security rather than the false sense of security 

offered by this bill. This is particularly true at a time when the 

present Administration is bringing but a handful of employer sanction cases per year. For all of the reasons set forth below in further 

detail, we respectfully dissent from H.R. 4437. 

OVERVIEW

With this legislation, the Majority increases mandatory detention, expedited removal and criminal penalties for civil immigration 

violations for all aliens, including innocent undocumented children, 

who will now automatically be subject to being locked up behind 

bars without the right to see an immigration judge. Of the bill’s 

most pernicious provisions, an alien’s ‘‘unlawful presence’’ would 

become a federal felony punishable by over one year in jail time 

and an ‘‘aggravated felony’’ for immigration purposes which would 

permanently bar a person from securing lawful immigration status 

in the United States. 

Ironically, or perhaps intentionally, the 11 million undocumented 

people in the United States would be excluded from a guest-worker 

program which President Bush and other Members of the Majority 

460 

reportedly embrace. If history is any lesson, these get-tough policies have not proven effective in deterring violations under the Immigration and Nationality Act (INA). Over the last two decades, 

Congress has enacted 17 pieces of legislation to crack down on immigration violators. Instead, the undocumented population has 

swelled to a record level. There is a clear consensus within the 

mainstream American public that the INA needs to be fundamentally overhauled to recognize the reality of the American economy 

and American employer’s real labor shortages and needs for foreign-born workers. Often compared to the Internal Revenue Service 

tax code given its arcane complexity, the INA is torturous for 

United States businesses, citizens and American families to navigate and secure status for employees and loved ones. 

We also oppose the bill because it eviscerates due process protections fundamental to our legal system and the Constitution 

through the expanded use of expedited removal, limitations on judicial review and refugee protection. These provisions cannot be 

predicated on the belief that low-level bureaucrats are somehow infallible in their decision-making and thereby should not be subject 

to any further review of their decisions. This belief is fundamentally mistaken given the dismal track record of the Department of 

Homeland Security and the Executive Office for Immigration Review in administering justice in individual cases. 

The lack of administrative and judicial review is particularly 

worrisome since even United States citizens and lawful permanent 

residents inevitably will become wrongfully ensnared by expedited 

removal and wrongfully deported to foreign countries by virtue of 

their ethnicity, appearance or not carrying and presenting their 

proper identification to border patrol agents. In virtually every 

other area of law, review of an administrative agency’s decision is 

guaranteed. Instead of correcting the lack of justice in the underlying administrative system, the Majority instead seeks to immunize the system from any transparency, accountability and scrutiny. 

Additionally, we believe that certain provisions in the bill are an 

insulting rebuke to the Supreme Court of the United States and 

the American public which trusts the Court to interpret the United 

States Constitution. One provision discussed below effectively reverses Supreme Court precedent prohibiting the Department’s indefinite detention of aliens to now sanction the Department’s indefinite detention of aliens. Another provision discussed below effectively reverses Supreme Court precedent protective of the due 

process rights of aliens when they accept pleas in state courts of 

law and are unapprised that their pleas will result in their removal 

by immigration authorities. Under this bill, corrective state court 

orders will be given no effect for immigration purposes despite Article IV to the United States Constitution which requires the Federal 

Government to give full, faith and credit to state court judgments. 

In our opinion, the bill is so extreme that it is beyond repair. Instead of reforming our immigration system to improve border security and effectively and realistically address undocumented immigration, this legislation destroys the system and creates untenable 

expectations for the Department of Homeland Security to successfully enforce every provision of this misguided bill. The Department 

461 

of Homeland Security does not have and will never be appropriated 

the detention capacity necessary to detain and deport all aliens 

subject to mandatory detention and expedited removal, thereby undermining their ability or willingness to arrest as many aliens as 

possible. The Department of Justice further will not be appropriated the resources necessary to prosecute and incarcerate all 11 

million undocumented aliens, their American families and employers. As written, the bill betrays real border security as well as the 

moral values, economic priorities and the promise of America. 

I. JURISDICTIONAL CONSIDERATIONS PRECLUDED OUR REVIEW OF

FOUR PROBLEMATICAL SECTIONS OF THIS BILL THAT ELEVATE PO- LITICAL MESSAGING OVER SERIOUS REFORM. 

The provisions of Titles I, III, IV, and V of H.R. 4437 were originally Titles I, II, III, and IV, respectively, of the House Homeland 

Security Committee-reported version of H.R. 4312, the ‘‘Border Security and Terrorism Prevention Act of 2005.’’ Unfortunately, 

Chairman Sensenbrenner announced at the beginning of the Judiciary Committee’s markup of H.R. 4437 that most of these provisions were outside of the scope of the Judiciary Committee and 

that, accordingly, amendments to most of these provisions in the 

Judiciary Committee would be ruled nongermane. This precluded 

the Minority from offering amendments to improve these important 

provisions of the bill. We must still, however, express our concern 

about several aspects of these provisions. 

First, we are disappointed by the timidity of the Homeland Security Committee-reported provisions in addressing our problems on 

the United States border with Mexico and Canada, as is embodied 

by these provisions. The four titles contain several important provisions that we support and several that we oppose. However, on the 

whole, they repeat a well-worn pattern that has emerged over the 

last five years, wherein the President declines to ask Congress for 

the resources necessary to secure our border, the Majority, declines 

to authorize specific amounts of funding for those resources, and 

the Majority fails to appropriate adequate resources for those purposes. 

We note that the Minority on the House Committee on Homeland 

Security offered a substitute for H.R. 4312 that would have more 

effectively addressed our Nation’s border security needs. We believe 

that amendment was worthy of support, and we are disappointed 

that the Committee rejected it on a party-line vote. We wish to associate ourselves with the dissenting views presented by our colleagues on the House Committee on Homeland Security in H. Rept. 

109-317, part 1, which expressed their view that their Substitute 

to H.R. 4312 would have ‘‘better secure[d] the border by taking 

steps in three main areas insufficiently addressed in the base bill: 

(1) stronger planning and coordination; (2) more accountability for 

struggling efforts to screen travelers and speed up commerce and 

travel; and (3) genuine commitments to provide the resources, 

training, and incentives needed by the people working everyday to 

secure the border.’’ 

We associate ourselves, as well, with the dissenting views expressed by our colleagues on the Homeland Security Committee 

that: 

462 

‘‘The Democratic substitute provides for stronger border security planning and coordination by requiring the development 

and implementation of a national border security strategy that 

includes specific information on the personnel, infrastructure, 

technology and other resources needed to secure the border, including surveillance equipment necessary to monitor the entire 

northern and southern borders. The substitute also strengthens planning and coordination by establishing an Office of 

Tribal Security to help the Department coordinate with tribes 

along the border who are overwhelmed by illegal border crossings. It also creates northern and southern border coordinators 

who can be held accountable for the security of the border in 

their respective geographic areas. 

‘‘The Democratic substitute strengthens accountability for programs designed to screen travelers and speed commerce and 

travel by requiring regular reports on Smart Border accords 

with Mexico; expanding expedited land border traveler programs by putting their enrollment systems in more locations 

and reducing fees, creating a North American travel card usable by certain low-risk American, Canadian, and Mexican travelers; creating a pilot of a system for prescreening of U.S.- 

bound passengers before they get on a plane; developing a new 

tool to replace the Department’s antiquated method for checking names against terrorist databases; requiring on-site 

verification of the security measures taken by entities participating in the Customs-Trade Partnership Against Terrorism 

(C-TPAT) program and the Free and Secure Trade (FAST) program; and requiring annual reporting on the implementation of 

the ‘‘One Face at the Border’’ initiative. 

‘‘Finally, the Democratic substitute makes genuine commitments to provide the tools and authority needed to better secure the border . . .’’ 

Second, we are disappointed that several provisions that had 

been adopted by the Committee on Homeland Security in H.R. 

4312, as it was reported to the House of Representatives, were left 

out of H.R. 4437. These include: 

• Section 302 of H.R. 4312, as reported by the Homeland Security Committee, which would have authorized funding to 

carry out section 5204 of the Intelligence Reform and Terrorism Prevention Act of 2004, directing the Secretary of 

Homeland Security to increase detention bed space by 8,000 

beds per year during that time. 

• An amendment by Ranking Democrat Bennie Thompson, 

agreed to during the House Committee on Homeland Security markup of H.R. 4312, that would have established within the Department of Homeland Security an Office of Tribal 

Security. 

The failure of the Majority to include these provisions that were in 

H.R. 4312 in the version of H.R. 4437 is emblematic of a longstanding pattern that the Majority is more interested in protecting 

the priorities of the current Administration than in protecting our 

borders. 

463 

2Section 305 of H.R. 4437 would permit States to use State Homeland Security Committee 

grants, Urban Area Security Initiative grants, or Law Enforcement Terrorism Prevention Program grant funds for preventing or responding to the unlawful entry of an alien or providing 

support to another entity relating to preventing such an entity. 3Section 401 of H.R. 4437 would require the mandatory detention of an alien ‘‘who is attempting to enter the United States illegally and who is apprehended at a United States port of entry 

or along the international land and maritime border of the United States’’ until he or she is 

removed from the United States or until a final decision has been rendered granting the alien 

admission to the United States. During an interim period between the date of enactment of the 

bill and one year after the date of enactment, the provision would permit such aliens to be released, but only if they pay a minimum $5,000 bond and meet certain other conditions. 

Third, we are concerned that several provisions contained in the 

four titles that were originally reported by the House Committee 

on Homeland Security are actually counterproductive and could be 

more harmful than helpful in helping to combat illegal immigration. Among these are: 

A. Use of Homeland Security Grants for Immigration Enforcement.2

We are deeply concerned about section 305 for two reasons. First, 

it would permit states to divert their homeland security grant 

funds to pay for border security functions that would normally be 

carried out by federal agencies. While we share the concern that 

an increasing amount of local government funds in border states 

are having to be spent to deal with the consequences of illegal immigration, we do not support forcing states and local governments 

to forgo funding they need to meet their traditional law enforcement and first responder missions. 

We note that the Administration already has cut the State 

Homeland Security Grant program, one of the grants affected by 

section 305, in half, from $1.1 billion in FY 2005 to $550 million 

in FY 2006. Spreading thin the remaining dollars in this program 

will only weaken state and local government first responder and 

homeland security preparedness. We note that the International 

Association of Fire Fighters opposed section 305 in a letter stating: 

‘‘If money is needed for immigration enforcement, then Congress 

should provide funding to the appropriate programs. Diverting 

funds from fire departments is not the solution.’’ 

We also oppose the Majority’s unrelenting push to force states to 

enforce civil immigration law. Many State and local law enforcement agencies around the country have expressed grave concerns 

about undertaking a role in enforcing civil immigration law, contending that it would undermine the relationships they need to 

have with their communities and make their communities less safe. 

We agree with their views on this question. 

B. Mandatory Detention.3

Section 401 is an overreaction to a flawed Administration policy 

of ‘‘catch and release’’ of aliens who it should have detained. While 

detention of aliens who are a danger to the community, a national 

security risk, or are in danger of absconding is a vital part of any 

strategy to secure our borders, expanding mandatory detention indiscriminately on such a broad scale as would occur under section 

401 would be more harmful than helpful. Rather than enact section 

401 into law, the Administration should seek and Congress should 

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4We note that Representative Lofgren, Representative Jackson Lee, and Representative Meek 

offered numerous amendments during the House Committee on Homeland Security markup of 

H.R. 4312 that would have enacted a more rational policy than that contained in section 401. 

Among them were amendments that would have sped the judicial process by requiring the Department to make a determination of whether an individual should be detained within seven 

days of arrest; put into place better controls to ensure that an alien released will appear at future proceedings; mandated a legal orientation program for aliens in removal proceedings to increase the efficiency and effectiveness of removal proceedings; and exempted vulnerable populations, such as the elderly, unaccompanied alien children, pregnant women, and the critically 

ill from the mandates of section 401. Unfortunately, these amendments were either defeated or 

ruled nongermane. 5Section 404 of H.R. 4437 would repeal current law, which requires the Secretary of State 

to deny visas to nationals of countries that deny or delay accepting their citizens, nationals, or 

residents whom the United States wishes to deport. It would insert in its place a provision that 

would authorize the Secretary of Homeland Security, after consultation with the Secretary of 

State, to deny the admission of nationals of countries that deny or delay accepting their citizens, 

nationals, or residents whom the United States wishes to deport. 6Section 406 of H.R. 4437 would require that, not later than six months after the date of enactment, the Secretary of Homeland Security review and evaluate the training provided Border 

Patrol agents and port of entry inspectors in the exercise of their duties with respect to referring 

aliens to asylum officers for credible fear determinations. The section would, further, require the 

Secretary to ‘‘take necessary and appropriate measures’’ to ensure consistency in their referrals 

of aliens to asylum officers for determinations of credible fear. 

tion, and a more rational policy on who is detained and who is released. 

Section 401, adopts a one-size-fits-all attitude that fails to 

prioritize scare detention resources. Coming on top of the failure of 

the Majority to provide adequate detention resources, it is a prescription for continued disaster. We do not have the physical capacity—even with greatly increased numbers of beds and facilities—to 

hold all illegal entrants for months or years. The logical solution 

to this problem is to focus on expediting the judicial process for 

captured aliens and detaining those who are a threat to our communities or at risk of flight.4

C. Denial of Entry to Citizens of Countries that Deny Admission of 

U.S. Deportees.5

We have serious concerns about the impact this section could 

have on citizens from certain countries who will be completely unresponsive to the pressure on their citizens that this new requirement might exert. To address this problem, Representative Lofgren 

introduced an amendment during the House Committee on Homeland Security markup requiring the Secretary of Homeland Security to deny admission not to average citizens, but rather to government officials traveling to the United States on official government 

business. This amendment would put the pressure on the government officials causing the problem, rather than on innocent foreign 

nationals merely wanting to come to the U.S. for travel, trade and 

family visits. This amendment was found non-germane in the 

Homeland Security Committee, and the opening announcement by 

Chairman Sensenbrenner about his view of germaneness implied 

that any amendment to deal with this unfortunate section would 

have been ruled nongermane in the Judiciary Committee, as well. 

D. Training Program on Credible Fear.6

We are concerned about the impact of this provision on those 

seeking asylum. Current law requires persons to be referred for a 

credible fear determination if they indicate a fear of persecution. 

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7Section 501 of H.R. 4437 would make the use of expedited removal mandatory against aliens 

suspected of having entered the United States without inspection who are neither Mexican nor 

Canadian, who are apprehended within 100 miles of the U.S. international border, and have 

been in the United States for 14 days or fewer. 

vision as a signal that there should be fewer referrals of aliens for 

credible fear determinations. 

E. Expansion of Expedited Removal.7

We are deeply concerned by the implications of Section 501. Current law already gives the Administration flexibility to expand or 

contract expedited removal as it sees fit in order to fit circumstances that it confronts at any given time. Expanding expedited removal statutorily in this manner would permanently tie the 

Administration’s hands and force it to use the procedure, even 

when it might deem it unwise, and when it believes that the use 

of expedited removal would pose more of a burden than it is worth. 

Moreover, once amended by this section, expedited removal 

would give the Secretary the power to remove from the country, 

without hearing, any immigrant thought to be illegally in the 

United States caught within 100 miles of the border and within 2 

weeks of the person crossing into the United States. Imposing expedited removal on all aliens apprehended at or between all land borders and within 100 miles of that border will apply expedited removal to thousands of people who are currently subject to regular 

immigration proceedings. Suddenly, thousands of people will go 

from having rights to appeal removal orders, rights of release from 

detention by immigration judges, and other due process rights in 

regular immigration proceedings to no appeal option and no opportunity for counsel. The only proceeding these individuals will receive is an on-the-spot decision by a Border Patrol Agent as to 

whether they should be removed. Furthermore, these individuals 

will face 5-year bars on reentering, all based on a very quick decision by a Border Patrol agent. 

We also feel strongly that the rule of law must be paramount in 

our practices, and expedited removal should be a method of last resort. It is far more preferable to hold a hearing to ascertain the status and intentions of a detained alien than to remove the person 

without trial for two reasons. First, security may be threatened by 

expedited removal as it may lead to the removal of an alien who, 

if detained for a longer period or subjected to a judicial hearing, 

may be discovered to be a terrorist. Second, removing individuals 

without at least some sort of hearing undermines the perception 

that the United States is a Nation that believes in a fair judicial 

process governed by the rule of law. At a time when we are engaged in a War on Terror where our respect for fairness and the 

law is one of the most important principles we can export abroad, 

we should not take steps to eliminate these principles in our immigration enforcement process—even for those caught here illegally. 

466 

8Section 203 of H.R. 4437 modifies section 275 of the Immigration and Nationality Act to 

make ‘‘unlawful presence’’ in the United States a misdemeanor. Section 201 makes a conviction 

for this new crime an ‘‘aggravated felony’’ for immigration purposes. 9Making criminals out of undocumented people makes them vulnerable to state and local police arrest. The inclusion of section 203 in this legislation is a sly attempt by the bill’s authors 

to enact the CLEAR Act (H.R. 3137) without calling it such. We reject the bills’ premise that 

all undocumented immigrants are criminals that should be rounded up by state and local police 

agents. State and local law enforcement have many more serious concerns on their hands, including protecting our communities from violent criminals and keeping our streets safe. If this 

provision passes as part of H.R. 4437, undocumented immigrants and their families will no 

longer know whether contacting the local police will be a help or a hurt. In addition, police officers attempting to implement this provision will no doubt use dubious strategies to determine 

who to question and detain. Racial profiling is an inevitable outcome, as police will focus greater 

scrutiny on people who look or sound ‘‘foreign.’’ Such a policy would most certainly lead to civil 

rights violations and expensive lawsuits when police question and detain legal residents and 

citizens who happen to be of Latin American, Asian, or other descent. 10President Bush has also indicated that he envisions such a program to facilitate legal immigration based on employment to reduce undocumented migration. He would extend this program 

to the current 7 million undocumented workers making up 5% of the Nation’s labor force, in 

addition to future workers. 

II. H.R. 4437 WILL FUTHER EXPAND THE MANDATORY DEPORTATION

PROVISIONS IN CURRENT LAW TO INCLUDE CATEGORIES OF MINOR

OFFENSES FOR WHICH NO EXTENUATING CIRCUMSTANCES MAY BE

CONSIDERED. 

Instead of enacting long-needed reforms of the Nation’s deportation laws to give immigrants facing deportation a chance to show 

why their deportation would be unfair and contrary to the Nation’s 

interests, H.R. 4437 increases the unfairness and harshness of the 

current immigration laws relating to non-citizens accused of past 

violations of the law. We are aware of the serious immigration consequences of a conviction for an aggravated felony are: mandatory 

detention and deportation, as well as permanent bars to immigration relief and future legal entry. Taken together, we are deeply 

concerned that Sections 203 and 201 of H.R. 4437 make criminals 

of the 11 million individuals living in this country without legal 

status, including 1.6 million children.8 The overwhelming majority 

of these people are not here to commit crimes, but rather to work 

and provide for their families. Turning them all into felons with 

the stroke of a pen is counterproductive.9

Significantly, Sections 201 and 203 would also criminalize millions of legal non-immigrants and immigrants, including lawful 

permanent residents and non-immigrants who accrue technical violations of immigration regulations. Section 203 makes being 

‘‘present in the United States in violation of the immigration laws 

or the regulations prescribed thereunder’’ a federal crime punishable by a prison sentence of one year and one day. But such violations would include lawful permanent residents who fail to report 

a change of address to the Department of Homeland Security 

(DHS) within ten days, as well as university students on an F-1 

visa who drop below a full course load or H-1B workers who lose 

their jobs and take too long to find another job. Section 201 would 

make such ‘‘crimes’’ an ‘‘aggravated felony,’’ subject to mandatory 

detention and virtually no relief from deportation.’’ 

We consider it ironic that many of the lead authors of H.R. 4437 

recently announced their support for a temporary worker program.10 Their legislation here, however, will make undocumented 

immigrants who are convicted of the new crime of unlawful presence ineligible for any type of temporary program, legalization, or 

467 

11Section 202 amends Section 274 of the INA in a manner that greatly expands the scope 

of criminal smuggling, harboring, and transporting aliens to ‘‘whoever assists, encourages, directs, or induces a person to come to or enter the U.S., or to attempt to come to or enter the 

U.S., knowing or in reckless disregard of the fact that such person is an alien who lacks authority to come to or enter the United States.’’ H.R. 4437 also goes beyond the current language 

of Section 274 to include ‘‘whoever assists, encourages, directs, or induces a person to reside in 

or remain in the United States, or to attempt to reside in or remain in the United States’’ H.R. 

4437 further expands the transporting provisions as well to include the clause ‘‘where the transportation or movement will aid or further in any manner the person’s illegal entry into or illegal 

presence in the United States.’’ 

future immigration status. The question we raised during Committee consideration of H.R. 4437 remains—does the Majority wish 

to find a solution for the 11 million undocumented immigrants living among us? If so, can they agree on what it is? Is it making 

them all criminals and organizing mass deportations, or is it a registration and vetting process along the lines proposed in H.R. 2330 

by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis 

Gutierrez (D-IL) ? We support earned legalization, not criminalization and mass deportation. 

III. OVERBROAD SMUGGLING PROVISIONS IN SECTION 202 COULD

SEVERELY PENALIZE INNOCENT ACTS

This section goes well beyond the traditional scope of alien smuggling and has the great potential to implicate many Americans 

under the broadened definition of smuggling.11 We believe that the 

‘‘assists, encourages, directs, or induces’’ standard is so broad that 

the Government could prosecute almost any American who has regular contact with undocumented immigrants. 

With 11 million undocumented immigrants currently residing 

and working in the this country, millions of American have direct 

and casual contact with undocumented immigrants. For example, 

a church group that provides food aid, shelter, or other assistance 

to members of its community could be penalized for ‘‘assisting or 

encouraging.’’ The aid worker who finds an illegal entrant suffering 

from dehydration in the desert and drives that person to a hospital 

could be penalized for ‘‘transporting.’’ Even driving an undocumented worker to work could be interpreted to ‘‘aid or further in 

any manner the person’s illegal presence in the U.S.’’ And any U.S. 

citizen living with an undocumented spouse could be considered to 

be ‘‘assisting or encouraging’’ a spouse’s presence. 

Certainly alien smuggling and trafficking for profit are activities 

that need to be sanctioned, and existing law already provides for 

harsh penalties. However, H.R. 4437 goes far beyond increasing 

penalties for these heinous activities and jeopardizes the well-being 

of millions of Americans—neighbors, family members, faith institutions, and others—who live and work with undocumented immigrants. 

IV. TITLE VI OF H.R. 4437 WOULD BAR A GRANT OF LAWFUL RESIDENT

STATUS TO MILLIONS OF IMMIGRANTS CURRENTLY WORKING IN THE

U.S., INCLUDING MANY IMMIGRANTS WITH U.S. CITIZEN SPOUSES OR

CHILDREN OR FLEEING PERSECUTION ABROAD. 

The Federal Government has an obligation to protect the freedoms enshrined in the Constitution at the same time we protect 

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12Withholding of removal is a form of protection given to immigrants whose life or freedom 

would be threatened because of the alien’s race, religion, nationality, membership in a social 

group, or political opinion. Similarly, immigrants who would face torture in their home countries 

can apply for withholding of removal protection through the Convention Against Torture. The 

applicant for withholding must show a clear probability of persecution or that it is more likely 

than not that her or she would be persecuted if removed to his home country. Unlike asylum, 

withholding of removal is ‘‘mandatory,’’ which means that a judge is required to grant relief to 

individuals who meet the statutory requirements. 13 In Zadvydas v. Davis, et al., 121 S. Ct. 2491 (June 28, 2001) the Court found, ‘‘The postremoval-period detention statute, read in light of the Constitution’s demands, implicitly limits 

an alien’s detention to a period reasonably necessary to bring about that alien’s removal from 

the United States, and does not permit indefinite detention. 14 Clark v. Martinez, 125 S.Ct. 716 (Jan 12, 2005), the Court held that the prohibition in 

Zadvydas against indefinite detention of removable aliens also applied to inadmissible aliens 

given canons of statutory construction requiring that the removal statute be construed consistently for both classes. 15For example, an individual who arrives from China, fails to attend a removal proceeding 

because he never got notice of the hearing and thus has a final order of removal, could be become a ‘‘lifer’’ and detained indefinitely if his home country is unwilling to issue travel documents. 

ness are essential to our way of life. We must, therefore, oppose 

many provisions in Title VI because they undermine these principles. Instead of getting tough on dangerous individuals and terrorists as the disingenuous titles of the sections imply, provisions 

in Title VI targets those hardworking families who want to be part 

of American society and refugees who fled persecution for hope and 

opportunity in America. 

We believe that Section 601 has the potential to deny individuals 

who face death, torture or abuse in their home countries from obtaining relief under withholding of removal. This is inconsistent 

with America’s obligations under international law and the plain 

meaning of the Immigration and Nationality Act.12

We are also alarmed by the sweeping nature of Section 602, disingenuously titled as ‘‘Detention of Dangerous Aliens’’ because it 

expands the Government’s authority to jail people for an infinite 

period of time. Two recent Supreme Court decisions expressly 

found that the Government cannot indefinitely detain of individuals who have final removal orders, but cannot be returned to their 

home country, due to no fault of their own. The question raised in 

these cases, and by this section, is a simple one: is it lawful for an 

executive branch employee, essentially the warden in these cases, 

to give a person a life sentence merely because the Government is 

unable to remove the person? The answer was a resounding no.13

A statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart 

of the liberty protected by the Due Process Clause.’’ This bill’s attempt to exclude ‘‘inadmissible’’ aliens entirely from a review process contradicts Clark v. Martinez, which extended the protections 

outlined in Zadvydas to ‘‘inadmissible aliens’’ from Cuba whose deportation was not ‘‘foreseeable.’’ The Court held, ‘‘Even if the statutory purpose and constitutional concerns influencing the Zadvydas 

construction are not present for inadmissible aliens, that cannot 

justify giving the same statutory text a different meaning depending on the characteristics of the aliens involved.’’ 14 Even asylum 

seekers and individuals with no criminal convictions have been, 

and could be, subject to indefinite detention under this section.15

Similarly, we are concerned about the fact that the removal period 

can be ‘‘tolled’’ for immigrants who are transferred to another Federal, state or local agency—his appears to be a stalling tactic to 

469 

16See U.S. Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991). 17 Id. 

prevent individuals from having their detentions reviewed in the 

statutory allotted 90 days. 

We also oppose Section 603 because it increases penalties and 

sets mandatory minimum sentence with respect to aliens who fail 

to depart when ordered removed or obstruct their removal, or who 

fail to comply with the terms of release while under supervision. 

The premise underlying this section is that tough mandatory minimum sentences will solve the problems associated with removal. 

We believe, however, that current law already contains sufficient 

penalties for individuals who fail to depart or comply with the 

terms of their release. Moreover, empirical evidence does not support this premise. The Judicial Conference of the United States and 

the U.S. Sentencing Commission have found that mandatory minimums distort the sentencing process and have the ‘‘opposite of 

their intended effect.’’ 16 Mandatory minimums ‘‘destroy honesty in 

sentencing by encouraging charge and fact plea bargains.’’ 

Further, mandatory minimums result in unwarranted sentencing 

disparity. That is, ‘‘mandatory minimums . . . treat dissimilar offenders in a similar manner, although those offenders can be quite 

different with respect to the seriousness of their conduct or their 

danger to society . . .’’ and . . . ‘‘require the sentencing court to 

impose the same sentence on offenders when sound policy and common sense call for reasonable differences in punishment.’’ 17 The 

Majority has failed to demonstrate any rationale purpose for mandatory sentences in this legislation—only an unwanted increase in 

detention time, space and money. Finally, we do not believe the 

punishment fits the crime when the Government is forced to detain 

someone for offenses without looking at the individual circumstances of the person’s case. 

Section 604 creates a new ground of inadmissibility for individuals who are in violation of fraud related offenses connected with 

Social Security cards and other identification documents. We are 

particularly disturbed by the fact that Section 604 strips the right 

to waivers to inadmissibility for certain individuals. This section 

will harshly penalize newcomers who are not criminals and come 

to the United States to contribute to the US work force. Because 

there are not legal channels for most of these necessary workers to 

enter the country or obtain work permits, many rely on false documents to contribute to our economy and feed their families. 

This section inappropriately removes the discretion of officers 

and judges to weigh favorable equities and individual circumstances when determining whether a bar to admission should 

be ‘‘waived’’ for humanitarian or related reasons. Under this section, individuals can be forever barred from this country for this 

conduct that occurred 20 years ago, regardless of their potential to 

be an outstanding member of society. Countless individuals would 

be denied admission without regard to family and employment ties, 

and other discretionary factors. Barring such waivers is an insult 

to judges whose exercise of discretion is fundamental to their role. 

We must also take issue Sections 605 and 606 due to the wide 

and retroactive net cast by these aggravated felony provisions. As 

470 

18Section 608 applies to individuals who are 1) members of a criminal street gang and has 

committed, conspired or threatened to commit or seeks to enter the United States to engage 

solely, principally, or incidentally in, a gang crime or any other unlawful activity or 2) is a member of a criminal street gang as designated by the Attorney General. The bill sets up a designation process whereby the Attorney General can without notice designate a group or association 

as a ‘‘gang.’’ This proposal is based on the ‘‘Alien Gang Removal Act of 2005,’’ H.R. 2933. 19We echo the remarks by Georgetown University Law Center Professor David Cole: ‘‘It is 

already a deportable offense for a gang member, or indeed any other foreign national who is 

convicted of an aggravated felony, a very broad term that as this Committee no doubt knows, 

includes misdemeanors, misdemeanors, includes shoplifting crimes and the like. What this bill 

does is make people deportable who have never committed a crime in their life, who are not 

suspected of committing a crime, who are merely deemed by the Department of Homeland Security to be a member of a group which is deemed by the Attorney General to be a bad group. 

Bad groups have bad people in them. They also have good people in them. This bill makes no 

distinction between the two. It deports anyone who is found to be a member of any group which 

has been blacklisted by the Attorney General. That’s guilt by association. If you took the McCarthy era laws that this Congress repealed in 1990, and you just substitute ’’criminal street gang’’ 

for ’’communist,’’ that’s what this bill would be. It essentially takes that approach where we punished people not for their own individual culpable conduct, but for their association with groups 

that we didn’t like, and rendered them deportable. That’s what this bill does, and it violates 

the first amendment right of association, and violates the fifth amendment right of an individual 

to be treated as an individual and not treated as culpable based on your associations.’’ http:// 

judiciary.house.gov/media/pdfs/printers/109th/22187.pdf 20 In addition to the constitutional issues raised by retroactive application of the provisions 

of Section 6, we are also concerned that section 610 may be unconstitutional because it expands 

the ability for DHS (a non-neutral agency) to summarily deport a broad class of immigrants 

without judicial or administrative review. See also Section 613, modifying the already problematic definition of conviction to include any reversal, expungement, or modification of a conviction 

record. 

we noted above, the aggravated felony provisions of this bill border 

on the ridiculous by including a wide net of minor offenses, including ones that are misdemeanors and not violent or aggravated. It 

is unreasonably harsh to attach a bar to adjustment for some individuals who fall under these provisions, when discretion in the review process can produce a more just and reasonable outcome. 

Similarly, we take issue with Section 608 because it creates new 

grounds of inadmissibility and deportability for people who may 

have not have engaged in any wrongdoing at all.18 We believe it 

may be unconstitutional to create a ‘‘guilt by association’’ regime 

whereby individuals who have never actually engaged in gang related activities but who are merely associated with them can be 

found deportable or inadmissible.19 Further, we believe the designation scheme is likely unconstitutional because it provides no 

notice to the group or association being designated. Lastly, we believe the bars to asylum and TPS undermine our obligations to protect people who are victims of persecution or torture. 

As a general matter, we are disturbed by attempts in this bill to 

slow down and limit the naturalization process.20 In combination, 

Sections 609 and 612 represent an unprecedented attack on lawful 

permanent residents who are applying for naturalization. Section 

609 unreasonably extends the time DHS has to adjudicate naturalizations applications from 120 days to 180 days and limits the 

ability of an individual seek relief from District Courts if the DHS 

fails to make a timely decision a naturalization application. The 

bill removes the ability of the District Court to adjudicate delayed 

applications and instead only allows the court the ability to review 

the cause for the delay and remand the case back to DHS where 

there is no guarantee of prompt processing. Given President Bush’s 

repeated pledge to speed up DHS application process, it is unjustifiable to award DHS additional time to complete naturalization applications and then further penalize the individual whose applicaVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00474 Fmt 6601 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
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21See also, remarks from Robert Gibbs, ‘‘This approach is particularly troubling given our experience here in Seattle, where we won a state-wide class action settlement with CIS agreeing 

that they had been making GMC determinations incorrectly for the past several years, causing 

at least 500 bad denials. Our experience demonstrates the need for judicial review.’’ See, Lee 

v. Gonzalez. 

609 limits scope of judicial review of denial to whether the DHS denial was supported by a 

‘‘facially legitimate and bona fide reasons’’ as opposed to the current de novo review. BIEA 

609(c) also precludes adjudication of a natz application if ICE commences removal proceedings, 

so even if you get to court on a denial, they can shut down your court case by filing an NTA. 

609: Besides the improper denials, there is a huge problem with delayed adjudications. There 

are 900 citizenship cases in this district that are held up beyond normal processing times because the FBI is overwhelmed with background check requests. There are many thousands more 

nationally. There is nothing negative on the applicants, just an inability of FBI to complete the 

searches that they want to do. We have numerous of these cases, some waiting over three years 

after their interview, where they passed all the history and English tests. Many are Iraqi refugees from Gulf War I, who escaped Saddam Hussein’s prisons and who cleared CIS background 

checks when they entered and then when they got permanent resident status. Some have been 

offered jobs by the US Army to go back to Iraq and interpret for our troops, but they cannot 

get hired because their citizenship application is stuck, and CIS can give no explanation of the 

problem. 

Under the current law, 8 USC 1447(b), if the citizenship interview has happened, and 120 days 

have passed without a decision, the applicant can ask a federal court judge to decide your case, 

who can grant the application, or send it back to CIS for further action. [Prior to 1990, the statute provided that the courts would decide naturalization applications, after you applied to INS 

for a recommendation. In 1990, Congress decided to make it more administrative, and shifted 

to INS the power to decide the application as an initial matter, but left an option to go to court 

for a decision if INS did not do so in 120 days after interview]. 

BIEA 609 would effectively eliminate the right under 8 USC 1447(b) to get a decision in delayed 

citizenship cases. While it appears to just shift the wait time from 120 to 180 days, in reality 

the clock would never start, as BIEA 609 also allows the DHS to define by regulation an ‘‘interview’’ or ‘‘examination’’ to be continuing. This is a tack they tried successfully in a court in Virginia with a pro se petitioner, but other courts have rejected this as vitiating the 120 day rule 

completely. As if this were not enough, even if the case gets to court, the only power the court 

s is to send it back to CIS. 22 Applicants for certain immigration benefits, including naturalization and cancellation of removal must demonstrate ‘‘good moral character’’. When a person attempts to show good moral 

character for naturalize, s/he must generally show ‘‘good moral character’’ for the past five years. 

This section would extend that review period from five years to indefinitely for aggravated felonies, regardless of whether the crime was classified as an aggravated felony at the time of conviction. The bill also adds a clause that Government ‘‘shall not be limited to the applicant’s conduct during the period for which good moral character is required, but may take into considerations as a basis determination the applicant’s conduct and acts at any time.’’ 23 Notes from Robert Gibbs: BIEA 612 would give CIS even more power to make incorrect good 

moral character decisions in a couple of ways. First, the bill effectively increases the good moral 

character eligibility requirement from five years to lifetime. § 609(a)(3). It tries to overturn a 

recent en banc 9th Cir decision in Hovsepian, 422 F.3d 883 (9th Cir 2005) which held that since 

citizenship required good moral character for only the past five years, if the applicant showed 

he met that requirement, the CIS could not deny based on an offense prior to the five year period. This is a recipe for more delays, endless investigations into errors in the distant past. As 

the Ninth Circuit stated in Hovsepian, ‘‘To hold otherwise would sanction a denial of citizenship 

where the applicant’s misconduct . . . was many years in the past, and where a former bad 

record has been followed by many years of exemplary conduct with every evidence of reformation and subsequent good moral character. Such a conclusion would require a holding that Congress had enacted a legislative doctrine of predestination and eternal damnation, whereas the 

statutes contemplate rehabilitation.’’ Hovsepian, supra. 

tion is not adjudicated in a timely manner by denying him the ability to seek relief in court.21

Section 612 similarly limits the naturalization process by making 

it more difficult to achieve a finding of good moral character.22 We 

believe that current standards, allowing the Government to determine good moral character based on conduct outside the five year 

time period provides sufficient flexibility and has more meaning because of the five year limitation. Under this section, such flexibility 

is subject to more abuse because it is coupled with language that 

allows an aggravated felony conviction at any time to be a bar on 

good moral character, sending the impression that dated offenses 

and acts can fit this definition.23

472 

24The GAO cited a study by the Temple University Institute for Survey Research and stated 

that a ‘‘mandatory dial-up version of the pilot program for all employers would cost the Federal 

Government, employers, and employees about $11.7 billion total per year, with employers bearing most of the costs.’’ GAO Report at 29 (emphasis added). 25 As an example of DHS’s current incapacity to manage its databases, just last month DHS 

Citizenship and Immigration Services (CIS) sent out letters recalling more than 60,000 green 

cards because a computer glitch miscalculated immigrants’ residency start dates. Many of those 

letters were incorrect and CIS has announced it will send out new letters advising all individuals who received the initial letter in error, informing them that their green card was correct 

and that there was no need to return it. 26 USCIS, Report to Congress on the Basic Pilot Program (Washington, DC 2004) 

V. THE PROPOSED EMPLOYMENT VERIFICATION SYSTEM ENACTS AN

UNWORKABLE, COSTLY GOVERNMENT PERMISSION-TO-WORK SYSTEM

THAT WILL NOT RESOLVE THE FLOW OF UNDOCUMENTED WORKERS

INTO AMERICAN SEEKING WORK

Title VII of H.R. 4437 creates a new Government program, the 

Employment Eligibility Verification System (EEVS) by vastly expanding the existing Basic Pilot Verification System and requiring, 

for the first time, all employers to seek Government consent to retain each and every worker they employ. We do not believe that 

the Majority has thought through costs and legal implication of the 

implementation of such a system, making its implementation unwise without further investigation. 

At base, this country simply cannot afford to enact the proposed 

system. Building the type of electronic, employment verification 

system envisioned by this bill that will not delay employers and 

employees unduly will cost at least $11.7 billion per year according 

to the GAO, and that cost will be born mostly by employers.24 Further, enacting the system will mandate the construction of a national ID system, whereby the Federal Government will collect and 

store in Government databases every American’s most-sensitive, 

personally-identifiable information. Recent GAO reports estimate 

that requiring the issuance of a hardened Social Security Card like 

the one necessary for this program to all Americans and lawful permanent residents will cost at least $4 billion. 

The challenge of implementing the massive new system envisioned by the Majority would be daunting at best: screening the approximately 54 million new hires per year and 146 million person 

workforce. However, there is no guarantee that the system will 

ever work due to the technological hurdles. The difficulties posed 

by the proposed system are well-documented by the current Basic 

Pilot. For example, the entire system would be based on databases 

that are known to contain an unacceptable number of errors and 

that would therefore likely yield millions of false determinations.25

Workers with erroneous information would face layoffs and would 

be unable to work for any lawful business for the weeks or months 

it would take for Government agencies to resolve the problem. 

Lawful employees should not have to fight the Government just to 

keep working. Businesses should not lose experienced employees 

while Government data glitches are resolved. 

The difficultlies mount for employment-authorized non-citizens. 

The records of employment-authorized non-citizens are even more 

inaccurate than those of citizens, so employers would be required 

to spend much more time and money to resolve their problems. 

SSA’s databases only automatically verify the status of less than 

50% of work-authorized non-citizens.26 The SSA automated apVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00476 Fmt 6601 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
473 

27 Ibid. 28 Ibid. 

proval failure rate is more than 50 times higher for work-authorized non-citizens than for citizens.27 The work-authorized non-citizens whose status cannot be confirmed by SSA must be referred to 

CIS for confirmation. Of these, CIS has to verify about 17% manually—a step which substantially delays eligibility confirmation.28

The EEVS also requires employers to collect more data from noncitizens than for others. 

Because of this added average expense and burden for non-citizens, we are concerned that employers, recruiters, or referrers are 

likely to shy away from employing or assisting anyone who looks 

or sounds foreign. Even worse, the burdensome new system would 

likely be the last straw for many of these businesses, potentially 

sending hundreds of thousands of them into the cash economy, 

completely out of the bounds of Government oversight and regulations. Ironically, this would likely increase undocumented immigration by creating a hidden new employment channel. This potential 

for exploitation and discrimination would be particularly acute for 

referrers and recruiters, who are required to verify employment eligibility before taking action. 

The employer sanction system has frequently been abused by 

bad-apple employers who want to intimidate workers who complain 

about job conditions or exercise their workplace rights. Title VII exacerbates this problem by allowing employers to voluntarily and selectively reverify current workers starting two years after enactment so long as they cannot be shown to have done so on a discriminatory basis. 

H.R. 4437 includes no procedures, funds or safeguards for correcting or updating inaccurate records, other than the simple requirement that it be done. Based on the error rate in the current 

pilot program, we could conservatively expect at least 3 million initial false negatives (a determination that the worker was not employment eligible) among the current workforce, many of which 

would require weeks or months to correct during which time it 

would be illegal to hire the worker. As a practical matter, we believe that records should be updated before the system goes into effect, for example, by setting accuracy standards as triggers before 

it becomes mandatory. This bill does not do that. In fact, it would 

severely limit legal recourse by workers who suffer injuries due to 

systematic agency errors. Under the bill, each wronged worker 

would be limited to individual claims for compensation under the 

Federal Tort Claims Act. 

Of additional concern are the privacy implications raised by such 

a system. To be capable of confirming work-eligibility these databases will contain substantial amounts of personally identifiable information regarding every citizen and every visa holder. The information needed will include name, age, Social Security Number and/ 

or another unique identifier, citizenship status, period of work-eligibility for non-citizens, address (to stamp out ID fraud), and a list 

of the queries from employers, their locations and the dates of 

those inquiries. Further, to resolve data errors, reduce identity 

fraud and distinguish between people with common names, addiVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00477 Fmt 6601 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
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29Further, the database itself will be a threat to privacy because it will be a prime target 

of identity thieves. Such an enormous database will be impossible to secure, thus any undocumented immigrant seeking work will be able to pay hackers to steal work-eligible Americans 

identities. The most obvious targets will be those who are work-eligible but who do not work. 

Moreover, as current events have indicated, data breaches and spills are inevitable. Thus, we 

should anticipate significant losses of millions of Americans most sensitive information. 30The 7th Circuit court of appeals recently noted that it had to reverse 40% of these BIA orders in the past year—a vastly higher percentage than in other cases where the U.S. Government was the appellee (in those cases the reversal rate was 18%). 31This section would amend INA § 221(i) to eliminate judicial review over claims or challenges 

arising from the revocation of a visa after the holder of the visa has entered the U.S., thereby 

removing any judicial oversight over consular decisions. (As background, the House, in last 

year’s Intelligence Reform Bill made visa revocation a ground of removal, but in conference the 

Senate added a clause allowing aliens facing removal to seek judicial review of their visa revocational information distinguishing individuals with the same names 

may be required, which likely necessitates the inclusion in the 

database of a date of birth and, perhaps, other biometric or personally identifiable information for every person residing in the United 

States. 

Thus, the database to support such a system will, for the first 

time, list every citizen and every visa holder residing in the United 

States, and, by necessity those who are non-eligible, but lawfully 

residing in this country. And, it will track their employment history. This is the very essence of a National ID system. The establishment of such a system is an anathema to rights to privacy 

under the Fourth Amendment to the United States Constitution.29

One searches in vain in Title VII for provisions that could potentially mitigate these serious concerns—such as adequate privacy 

and civil rights safeguards, or protections or recourse for persons 

who suffer termination due to agency error. 

Finally, we are again concerned that this proposal is not accompanied by comprehensive immigration reform, which would provide 

channels for immigrants to live and work in the U.S. legally. Implementation of an employment verification system without such 

reform would invite severe unintended consequences such as expansion of the underground economy and increased identity theft, 

fraud, bribery and corruption. 

VI. SECTION 8 OF THE BILL WOULD STRIP FEDERAL COURTS OF JURISDICTION OVER IMMIGRATION CASES AND COMPOUND THE INJUSTICES ALREADY PRESENT IN THE CURRENT SYSTEM

Legal immigrants face the risk of mandatory detention and automatic deportation for run-ins with the law that are considered 

minor in the case of U.S. citizens, and are subjected to judicial proceedings in which speed is valued far more than accuracy or fairness. Evidence of the abysmal treatment that legal immigrants 

often face in the judicial system can be found in the scathing criticisms emanating even from conservative federal courts as they consider appeals of the decisions handed down by immigration 

courts.30 Phrases like ‘‘ignored the evidence,’’ ‘‘riven with error,’’ 

‘‘astounding lapse in logic,’’ and ‘‘woefully inadequate’’ have begun 

to pepper a growing number of these critiques by Federal courts. 

The Majority’s solution to these injustices is to strip Federal courts 

of their already limited ability to identify and rectify mistakes 

made by immigration judges. 

Section 802 seeks to restrict judicial review of a decision by DHS 

to revoke an individual’s visa.31 The Majority argues that consular 

475 

tions.) This section would gut the Senate’s attempt to inject a measure of due process into the 

revocation process. 

decisions are non-reviewable, so revocations should likewise be 

non-reviewable. That argument misses the mark. To revoke someone’s visa after they have traveled to the United States and acted 

in reliance on the validity of that issuance (e.g. moving to the U.S. 

and beginning employment) is very different from denying someone 

authority to enter the country from the outset. We believe that 

basic principles of fairness militate in favor of providing an opportunity to challenge the Government’s arbitrary reversal of significant decision upon which an individual justifiably relied. 

Section 803 attempts to negate 9th Circuit precedent that prohibits reinstatement of removal without a hearing. It would amend 

INA § 241(a)(5) to state that reinstatement shall not require proceedings before an immigration judge under INA section 240 or 

otherwise. Section 803 also would amend INA § 242 to restrict any 

judicial review on the issue of reinstatement to the United States 

Court of Appeals for the District of Columbia Circuit and would 

only allow a challenge to the constitutionality of the law or regulations. 

Section 804 is another assault on those who fear persecution. 

‘‘Withholding of removal’’ is a form of protection that, while similar 

to asylum, differs in two important respects: (1) it is nondiscretionary and (2) to receive this benefit, the alien must meet a 

higher standard of proof than asylum. In the REAL ID Act, Congress amended the asylum motivation standard to require an asylum applicant to show that one of the five protected characteristics 

would be ‘‘at least one central reason’’ for harm in order to receive 

asylum. Section 804 would import the REAL ID Act’s ‘‘one central 

reason’’ requirement into the withholding statute by amending INA 

§ 241(b)(3) to preclude a grant of withholding of removal unless the 

alien can establish that his or her life or freedom would be threatened in the country in question, and that race, religion, nationality, 

membership in a particular social group, or political opinion would 

be at least one central reason for such threat. The provision would 

be effective retroactive to the date of the REAL ID Act’s passage 

into law (May 11, 2005). 

We remain concerned about this standard because it could mean 

that a woman who is raped because she is a woman and because 

she is of a minority religion could apply for withholding of removal 

only if she could prove that the persecution based on religion was 

a central reason, but not if it was only one non-central reason 

while the main reason was due to her sex. Sex is not one of the 

protected categories. Proving this ‘‘central reason’’ is often difficult 

in these situations considering the many mixed motives for rape of 

minority women. 

Section 805 would severely weaken the right to federal court review of erroneous Board of Immigration Review opinions. Specifically, section 805 would amend INA § 242(b)(3) to implement a 

process whereby an alien’s petition for review would be assigned to 

a single court of appeals judge upon the filing of the alien’s brief. 

If the judge issues a ‘‘certificate of reviewability,’’ the case would 

proceed through the normal appellate process. Such certificate, 

476 

32For example, the 2nd Circuit has established a mediation program for blocks of cases where 

appropriate. Other courts such as the 3rd Circuit have established pro bono referral programs 

to ensure competent representation of aliens in their petitions for review. 

however, would issue only if the alien had ‘‘made a substantial 

showing that the petition for review is likely to be granted.’’ If the 

alien fails to make such a showing, the single judge would deny the 

petition for review and that decision would be unreviewable. In addition, if the judge fails to issue such a certificate within 60 days 

(with certain limited extensions available), the petition for review 

would be deemed denied. If no certificate of reviewability is issued, 

any stay of removal would dissolve automatically, the Government 

would not be required to file its brief, and the petitioner could be 

removed without further recourse. 

We strongly object to this proposal. Only months after the Majority revamped the statute as part of REAL ID, insisting that the circuit courts were the appropriate place for judicial review, the bill 

now seeks to restrict and virtually eliminate it altogether. In essence, section 805 unnecessarily initiates an unprecedented certiorari process for Article III court appeals, at a time when the circuit 

courts have become increasingly critical of the quality of agency decision making. 

The number of cases being reversed and remanded, and the percentages cited by the courts themselves, indicates that petitions for 

review being filed today are far from ‘‘meritless,’’ as the Majority 

contends. Although circuit courts have experienced an increase in 

volume of immigration cases (resulting in large part from irresponsible streamlining regulations issued by the Department of Justice), they also have initiated measures to address the caseflow 

that are far less drastic than those the bill would impose. Given 

the significant role being played by the judiciary in insuring that 

removal decisions comport with due process, we believe the degree 

of interference that the bill requires would undermine the court’s 

role in ensuring fairness and providing needed oversight. There are 

far better mechanisms than those the bill proposes, which are already in place and working, to address the wave of immigration appeals in a way that balances the interests of all concerned.32

Congress has contemplated ‘‘court stripping’’ legislation numerous times including around the issue of desegregation that occurred 

in the 1960s at the height of the modern civil rights era. Those proposals were seen for what they were—an attack on judges who enforce the Constitution and protect the rights of individuals—and 

were defeated. Likewise opponents of women’s right to reproductive 

choice and to separation of church and state have tried to strip the 

courts of their jurisdiction over abortion and school prayer cases. 

In each instance, civil rights, civil liberties and women’s right communities mobilized against the proposed laws, educating the public 

that taking away the court’s power to enforce rights is tantamount 

to taking away the rights themselves. When the targets are the 

most vulnerable in our society: immigrants, prisoners and the poor, 

there is less public awareness or opposition but all the greater need 

to defend these constitutional protections of fairness. 

Section 806 would prohibit the issuance of a non-immigrant visa 

unless the applicant first waives his or her right to any review or 

appeal of an immigration officer’s decision at the port of entry as 

477 

to the alien’s admissibility, as well as his or her right to contest, 

other than on the basis of an application for asylum, any action for 

removal of the alien. In the Majority’s explanation of the bill, they 

analogize this required waiver of due process rights to the existing 

requirement under the Visa Waiver Program. 

This analogy is disingenuous at best, as the class of individuals 

affected under this amendment would include H-1B and L-1 visa 

holders, students, exchange visitors, journalists, diplomats, treaty 

traders, fiance ́s, spouses of United States citizens entering on K 

visas, athletes, entertainers, certain aliens with extraordinary ability, cultural exchange visitors, religious workers, witnesses, and 

victims of trafficking. We maintain that the entry of these individuals is not analogous to that of tourists who, in exchange for being 

admitted visa-free for a period of 90 days, agree to waive their 

right to a removal hearing. 

VII. H.R. 4437 VIOLATES U.S. OBLIGATIONS TO ASYLUM SEEKERS AND

REFUGEES UNDER INTERNATIONAL LAW

People seeking asylum in the United States from persecution in 

their home countries would be particularly affected by this legislation. Asylum seekers detained upon arrival in the United States 

are already subject to being treated like criminals and detained 

under jail-like conditions for indeterminate periods of time. This 

bill would increase the prolonged detention of this vulnerable population, would redefine asylum seekers who were simply here out of 

status as felons under the law, and would subject an overwhelming 

proportion of asylum seekers inside the United States to removal 

without a hearing. 

For those whose cases were decided through the immigration 

court process, the bill would aim to diminish their access to judicial 

review, by subjecting their cases to summary dismissal if a single 

judge of the court of appeals failed to issue them a ‘‘certificate of 

reviewability’’ within a 60 day time limit. Finally, by attempting to 

undo the Supreme Court’s rulings prohibiting the indefinite detention of non-citizens who cannot be removed from the United States, 

the bill would allow asylum seekers and refugees who were ordered 

removed but could not be returned to their countries—a situation 

which historically has applied to persons who fled countries ranging from Cambodia to Vietnam to Cuba—to be jailed indefinitely, 

subject to very limited administrative and still more limited judicial review. 

Section 203 of the bill would make it a crime to be in the U.S. 

in violation of immigration laws. The radical nature of this change 

to our immigration laws, as applied to non-citizens generally, has 

been noted earlier. As applied to asylum seekers, it would also violate U.S. obligations under Article 31 of the Refugee Convention, 

which prohibits the penalization of asylum seekers for the irregular 

manner of their entry into or presence in the territory of their 

country of refuge. The bill contains no exception for asylum seekers. Nor does it contain an exception for other vulnerable populations: victims of trafficking, children, young people whose lack of 

status in the U.S. is due to their having been brought here at a 

young age by their parents, battered women, and others whose irVerDate Aug 31 2005 01:15 Dec 14, 2005 Jkt 024989 PO 00000 Frm 00481 Fmt 6601 Sfmt 6601 E:\HR\OC\HR345P1.XXX HR345P1
478 

33For example, under this provision, a person who entered the U.S. legally and found herself 

unable to return to, for example, El Salvador, Liberia, Honduras, Burundi, based on circumstances beyond her control like civil war or natural disaster, could find herself prosecuted, 

jailed for up to 366 days, and then—as a result of this—ineligible for TPS if that protection later 

became available to people in her situation. 

regular presence in the United States is due to forces beyond their 

control including war or natural disaster in their home countries.33

Other sections of the bill that aim to subject an increasing proportion of non-citizens to summary removal without a hearing also 

pose particular concerns for refugee protection. Section 806 would 

prohibit the issuance of a non-immigrant visa to anyone unless the 

person waives his right, not only to review or appeal the decision 

of a BCBP officer at the port of entry that he is inadmissible, but 

also ‘‘to contest, other than on the basis of an application for asylum, any action for the removal of the alien.’’ 

The extreme nature of this proposal as applied to non-citizens in 

general has been noted earlier, and despite its provision of an exception for asylum claims, it also threatens asylum seekers’ access 

to the adjudication process. Persons apprehended and deported for 

overstaying their period of authorized admission under the Visa 

Waiver Program (VWP) are not subject even to the limited protections available to asylum seekers placed in expedited removal 

under section 235. The extension of these same summary-removal 

provisions currently applicable to VWP entrants to all non-immigrants greatly increases the risk of asylum seekers who entered the 

U.S. legally being returned to their countries of persecution without ever having an opportunity to make their claims. 

In addition, this provision would appear to prevent those who entered on non-immigrant visas and are coming forward spontaneously to claim asylum from making an affirmative application for 

asylum before the Asylum Office, in that people not eligible for 

hearings under section 240 are currently removed from the Asylum 

Office’s jurisdiction. While being inefficient (in forcing the adjudication of all these cases by the immigration courts, a much slower, 

more cumbersome, and more expensive process), this provision also 

has the perverse effect of penalizing asylum seekers who entered 

the United States through legal channels for the legality of their 

original entry. And asylum is the only exception this provision recognizes, leaving other categories of vulnerable people to be deported with no process whatsoever, including children, trafficking 

victims, and persons eligible for relief under VAWA, cancellation of 

removal, or Temporary Protected Status. 

The vast expansion by statute of expedited removal under section 

401 of this bill, to anyone (other than Mexicans, Canadians, and 

Cubans) present in the U.S. without admission or parole and apprehended within 100 miles of an international land border of the 

U.S. and within 14 days of entry, is also of serious concern. Although persons seeking asylum would still be eligible to be referred 

for a credible fear interview, the expansion of these summary procedures, which place enormous unreviewable power into the hands 

of Border Patrol officers, would pose a very serious challenge of 

training and supervision to ensure that refugees are not returned 

to persecution in violation of the United States’ obligations under 

the Refugee Convention. Moreover, aside from asylum seekers, this 

479 

34The provision sets up an interim regime, which would go into effect 60 days after enactment 

of this legislation, and a permanent regime, which would go into effect on October 1, 2006. 

Under the interim regime, a person attempting to enter the U.S. illegally and apprehended at 

a U.S. port of entry or along a land or maritime border could not be released pending proceedings unless the DHS secretary determined (‘‘after conducting all appropriate background 

and security checks on the alien’’) that the alien ‘‘does not pose a national security risk’’ and 

the alien posted bond of at least $5,000. 35 In this regard, we recognize the importance of Congressman Meek’s amendment to the 

House’s Border Security and Terrorism Prevention Act of 2005 (H.R. 4312) entitled ‘‘The Security Immigration Coordination and Oversight Act’’ which provided simple protections for immigrant detainees. For example, the amendment called for families to be detained together and 

not separated, as current policy dictates. The amendment also included language mandating access to medical care for these vulnerable detainees, many of whom have experienced rape, torture and other human rights abuses. It also sought to increase the effectiveness of the Department of Homeland Security’s Policy Directorate, codify detention standards and provide for a 

high level officer in charge of monitoring detention conditions. Had the measure passed, it would 

have directed DHS to create enforceable regulations on the treatment of immigrants, asylumseekers, refugees and other vulnerable groups that promote a balance between law enforcement 

and humanitarian considerations. 36Mr. Scott’s amendment was timely considering the shocking, gut-wrenching expose entitled 

‘‘The Death of Richard Rust’’ which aired on National Public Radio’s All Things Considered on 

December 5, 2005, available http://www.npr.org/templates/story/story.php?storyI. In this expose, Daniel Zwerdling examines how Richard Rust, a 34-year-old Jamaican detainee in Louisiana’s Oakdale Federal Detention Center, collapsed and died after Government employees apparently disregarded national medical standards by neglecting to give him basic emergency care. 

Prison employees subsequently put dozens of immigrants at Oakdale in near-solitary confinement after they protested what had happened. The Department of Homeland Security refused 

to be interview for the report. 

section makes no other exceptions for other vulnerable groups who 

have a claim to protection under our laws, including victims of trafficking. 

Additionally, for arriving asylum seekers, Section 401, would result in increased prolonged detention.34 Under the permanent regime, however, the person’s detention would be mandatory until 

admitted or removed, unless he/she were permitted to withdraw 

his/her application for admission and immediately depart the U.S., 

or were paroled. DHS’s use of its discretionary parole authority for 

arriving asylum seekers thus far has been erratic—leading, for example, to the unaccountable decision last year to detain the Rev. 

Joseph N. Dantica, an 81-year-old Baptist minister from Haiti who 

arrived in the United States on a valid passport and visa and 

whom DHS had the power to release immediately pending his asylum claim, but who instead died in DHS custody a few days later. 

This bill’s overwhelming focus on detention and on filling available bed space without providing adequate safeguards sets the 

stage for further tragedies of this sort as automatic detention, rather than a reasoned consideration of individual circumstances, becomes a reflex.35 The Committee in fact recognized the problem of 

substandard, inhumane conditions and treatment of immigration 

detainees through adopting an amendment offered by Mr. Scott of 

Viginia which will require the Comptroller General of the United 

States to report to Congress on the deaths in custody of detainees 

held on immigration violations.36

For persons, including asylum seekers and refugees, whose cases 

were ultimately denied but who could not be returned to their 

countries of origin, Section 602, as described in more detail in earlier sections of this document, would allow them to be jailed indefinitely subject to very limited review. This section could subject 

large numbers of asylum seekers, refugees, and nationals of countries like Cuba to prolonged indefinite detention for reasons beyond 

their control and subject to inadequate review. 

480 

CONCLUSION

There is an urgent need and desire for real solutions that could 

truly address our immigration problems. H.R. 4437 does not deliver, and represents yet another failed opportunity. As it stands, 

this bill is just another in a long line of get-tough immigration bills 

that have only succeeded in exacerbating our problems. Since 1995, 

Congress has enacted an average of nearly one such bill every year. 

Enactment of H.R. 4437 would represent the third time in just the 

last 12 months that we would have done so. Last December we 

passed intelligence reform, which included significant immigration 

enforcement provisions, and then in May we passed the REAL ID 

Act which was supposed to bring our immigration situation under 

control. No sooner do we enact such legislation than it is forgotten—except by those charged with implementing failed concepts 

that sounded good in a press release—and calls begin for yet another get-tough bill. 

After numerous such bills in the last decade of GOP control, net 

illegal immigration is at its highest level ever, and there are an estimated 11 million undocumented immigrants in the U.S. We believe that it is well past time to re-consider our approach. As Members on both sides of the aisle now recognize, our immigration enforcement mechanisms will not work until we reform the system 

they are intended to enforce. It is time to enact comprehensive legislation that resolves the status of undocumented immigrants who 

work and pay taxes in our country, accommodates the future flows 

that will be necessary for our economy, and prevents the needless 

separation of families. 

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

JERROLD NADLER. 

ROBERT C. SCOTT. 

MELVIN L. WATT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

MARTIN T. MEEHAN. 

WILLIAM D. DELAHUNT. 

ROBERT WEXLER. 

LINDA T. SA ́ NCHEZ. 

CHRIS VAN HOLLEN. DEBBIE WASSERMAN SCHULTZ. 

Æ