II

103D CONGRESS

2D SESSION S. 2480

To amend the Immigration and Nationality Act to add provisions relating

to the treatment of criminal aliens under the immigration laws of the

United States, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 29 (legislative day, SEPTEMBER 12), 1994

Mr. SIMPSON introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to add provisions relating to the treatment of criminal aliens under

the immigration laws of the United States, 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. EXPANSION OF DEFINITION OF AGGRAVATED

4 FELONY.

5 (a) EXPANSION OF DEFINITION.—Section

6 101(a)(43) of the Immigration and Nationality Act (8

7 U.S.C. 1101(a)(43)) is amended to read as follows:

8 ‘‘(43) The term ‘aggravated felony’ means—
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1 ‘‘(A) murder;

2 ‘‘(B) illicit trafficking in a controlled sub3 stance (as defined in section 102 of the Con4 trolled Substances Act), including a drug traf5 ficking crime (as defined in section 924(c) of

6 title 18, United States Code);

7 ‘‘(C) illicit trafficking in firearms or de8 structive devices (as defined in section 921 of

9 title 18, United States Code) or in explosive

10 materials (as defined in section 841(c) of that

11 title);

12 ‘‘(D) an offense described in section 1956

13 of title 18, United States Code (relating to

14 laundering of monetary instruments) or section

15 1957 of that title (relating to engaging in mon16 etary transactions in property derived from spe17 cific unlawful activity) if the amount of the

18 funds exceeded $100,000;

19 ‘‘(E) an offense described in—

20 ‘‘(i) section 842 (h) or (i) of title 18,

21 United States Code, or section 844 (d),

22 (e), (f), (g), (h), or (i) of that title (relat23 ing to explosive materials offenses);

24 ‘‘(ii) section 922(g) (1), (2), (3), (4),

25 or (5), (j), (n), (o), (p), or (r) or 924 (b)
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1 or (h) of title 18, United States Code (re2 lating to firearms offenses); or

3 ‘‘(iii) section 5861 of the Internal

4 Revenue Code of 1986 (relating to fire5 arms offenses);

6 ‘‘(F) a crime of violence (as defined in sec7 tion 16 of title 18, United States Code, but not

8 including a purely political offense) for which

9 the term of imprisonment imposed (regardless

10 of any suspension of imprisonment) is at least

11 5 years;

12 ‘‘(G) a theft offense (including receipt of

13 stolen property) or burglary offense for which

14 the term of imprisonment imposed (regardless

15 of any suspension of such imprisonment) is at

16 least 33 months;

17 ‘‘(H) an offense described in section 875,

18 876, 877, or 1202 of title 18, United States

19 Code (relating to the demand for or receipt of

20 ransom);

21 ‘‘(I) an offense described in section 2251,

22 2251A, or 2252 of title 18, United States Code

23 (relating to child pornography);

24 ‘‘(J) an offense described in section 1962

25 of title 18, United States Code (relating to
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1 racketeer influenced corrupt organizations) for

2 which a sentence of 5 years’ imprisonment or

3 more may be imposed;

4 ‘‘(K) an offense that—

5 ‘‘(i) relates to the owning, controlling,

6 managing, or supervising of a prostitution

7 business; or

8 ‘‘(ii) is described in section 1581,

9 1582, 1583, 1584, 1585, or 1588, of title

10 18, United States Code (relating to peon11 age, slavery, and involuntary servitude);

12 ‘‘(L) an offense relating to perjury or sub13 ornation of perjury if the offense involved caus14 ing or threatening to cause physical injury to a

15 person or damage to property;

16 ‘‘(M) an offense described in—

17 ‘‘(i) section 793 (relating to gathering

18 or transmitting national defense informa19 tion), 798 (relating to disclosure of classi20 fied information), 2153 (relating to sabo21 tage) or 2381 or 2382 (relating to treason)

22 of title 18, United States Code; or

23 ‘‘(ii) section 601 of the National Secu24 rity Act of 1947 (50 U.S.C. 421) (relating
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1 to protecting the identity of undercover in2 telligence agents);

3 ‘‘(N) an offense that—

4 ‘‘(i) involves fraud or deceit in which

5 the loss to the victim or victims exceeds

6 $200,000; or

7 ‘‘(ii) is described in section 7201 of

8 the Internal Revenue Code of 1986 (relat9 ing to tax evasion) in which the revenue

10 loss to the Government exceeds $200,000;

11 ‘‘(O) an offense described in section

12 274(a)(1) of title 18, United States Code (relat13 ing to alien smuggling) for the purpose of com14 mercial advantage;

15 ‘‘(P) an offense described in section

16 1546(a) of title 18, United States Code (relat17 ing to document fraud) which constitutes traf18 ficking in the documents described in such sec19 tion;

20 ‘‘(Q) an offense relating to a failure to ap21 pear by a defendant for service of sentence if

22 the underlying offense is punishable by impris23 onment for a term of 15 years or more; and

24 ‘‘(R) an attempt or conspiracy to commit

25 an offense described in this paragraph.
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1 The term applies to an offense described in this

2 paragraph whether in violation of Federal or State

3 law and applies to such an offense in violation of the

4 law of a foreign country for which the term of im5 prisonment was completed within the previous 15

6 years.’’.

7 (b) EFFECTIVE DATE.—The amendments made by

8 this section shall apply to convictions entered on or after

9 the date of enactment of this Act.

10 SEC. 2. DEPORTATION PROCEDURES FOR CERTAIN CRIMI11 NAL ALIENS WHO ARE NOT PERMANENT

12 RESIDENTS.

13 (a) ELIMINATION OF ADMINISTRATIVE HEARING FOR

14 CERTAIN CRIMINAL ALIENS.—Section 242A of the Immi15 gration and Nationality Act (8 U.S.C. 1252a) is amended

16 by adding at the end the following new subsection:

17 ‘‘(f) DEPORTATION OF ALIENS WHO ARE NOT PER18 MANENT RESIDENTS.—

19 ‘‘(1) Notwithstanding section 242, and subject

20 to paragraph (5), the Attorney General may issue a

21 final order of deportation against any alien described

22 in paragraph (2) whom the Attorney General deter23 mines to be deportable under section

24 241(a)(2)(A)(iii) (relating to conviction of an aggra25 vated felony).
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1 ‘‘(2) An alien is described in this paragraph if

2 the alien—

3 ‘‘(A) was not lawfully admitted for perma4 nent residence at the time that proceedings

5 under this section commenced, or

6 ‘‘(B) had permanent resident status on a

7 conditional basis (as described in section 216 or

8 216A) at the time that proceedings under this

9 section commenced.

10 ‘‘(3) No alien described in this section shall be

11 eligible for any relief from deportation that the At12 torney General may grant in his discretion.

13 ‘‘(4) The Attorney General may not execute any

14 order described in paragraph (1) until 14 calendar

15 days have passed from the date that such order was

16 issued, unless waived by the alien, in order that the

17 alien has an opportunity to apply for judicial review

18 under section 106.

19 ‘‘(5) Pending a determination of deportability

20 under this section, the Attorney General shall not

21 release the alien. An order of deportation entered

22 pursuant to this section shall be executed by the At23 torney General in accordance with section 243. Pro24 ceedings before the Attorney General under this sec25 tion shall be in accordance with such regulations as
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1 the Attorney General shall prescribe and shall in2 clude requirements that provide that—

3 ‘‘(A) the alien is given reasonable notice of

4 the charges;

5 ‘‘(B) the alien has an opportunity to have

6 assistance of counsel at no expense to the gov7 ernment and in a manner that does not unduly

8 delay the proceedings;

9 ‘‘(C) the alien has a reasonable oppor10 tunity to inspect the evidence and rebut the

11 charges;

12 ‘‘(D) the determination of deportability is

13 supported by reasonable, substantial, and pro14 bative evidence; and

15 ‘‘(E) the final order of deportation is not

16 adjudicated by the same person who issued

17 such order.’’.

18 (b) LIMITED JUDICIAL REVIEW.—Section 106 of the

19 Immigration and Nationality Act (8 U.S.C. 1105a) is

20 amended—

21 (1) in the first sentence of subsection (a), by in22 serting ‘‘or pursuant to section 242A’’ after ‘‘under

23 section 242(b)’’;
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1 (2) in subsection (a)(1) and subsection (a)(3),

2 by inserting ‘‘(including an alien described in section

3 242A)’’ after ‘‘aggravated felony’’; and

4 (3) by adding at the end the following new sub5 section:

6 ‘‘(d) Notwithstanding subsection (c), a petition for

7 review or for habeas corpus on behalf of an alien described

8 in section 242A(c) may only challenge whether the alien

9 is in fact an alien described in such section, and no court

10 shall have jurisdiction to review any other issue.’’.

11 (c) TECHNICAL AMENDMENTS.—Section 242A of the

12 Immigration and Nationality Act (8 U.S.C. 1252a) is

13 amended—

14 (1) in subsection (a)—

15 (A) by striking ‘‘(a) IN GENERAL.—’’ and

16 inserting the following:

17 ‘‘(b) DEPORTATION OF PERMANENT RESIDENT

18 ALIENS.—

19 ‘‘(1) IN GENERAL.—’’; and

20 (B) by inserting in the first sentence ‘‘per21 manent resident’’ after ‘‘correctional facilities

22 for’’;

23 (2) in subsection (b)—

24 (A) by striking ‘‘(b) IMPLEMENTATION.—’’

25 and inserting ‘‘(2) IMPLEMENTATION.—’’; and
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1 (B) by striking ‘‘respect to an’’ and insert2 ing ‘‘respect to a permanent resident’’;

3 (3) by striking subsection (c);

4 (4) in subsection (d)—

5 (A) by striking ‘‘(d) EXPEDITED PRO6 CEEDINGS.—(1)’’ and inserting ‘‘(3) EXPE7 DITED PROCEEDINGS.—(A)’’;

8 (B) by inserting ‘‘permanent resident’’

9 after ‘‘in the case of any’’; and

10 (C) by striking ‘‘(2)’’ and inserting ‘‘(B)’’;

11 (5) in subsection (e)—

12 (A) by striking ‘‘(e) REVIEW.—(1)’’ and

13 inserting ‘‘(4) REVIEW.—(A)’’;

14 (B) by striking the second sentence; and

15 (C) by striking ‘‘(2)’’ and inserting ‘‘(B)’’;

16 (6) by redesignating subsection (f), as added by

17 subsection (a) of this section, as subsection (c);

18 (7) by inserting after the section heading the

19 following new subsection:

20 ‘‘(a) PRESUMPTION OF DEPORTABILITY.—An alien

21 convicted of an aggravated felony shall be deportable from

22 the United States.’’; and

23 (8) by amending the section heading to read as

24 follows:
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‘‘EXPEDITED DEPORTATION OF ALIENS CONVICTED OF

COMMITTING AGGRAVATED FELONIES’’.

1 (d) EFFECTIVE DATE.—The amendments made by

2 this section shall apply to all aliens against whom deporta3 tion proceedings are initiated after the date of enactment

4 of this Act.

5 SEC. 3. JUDICIAL DEPORTATION.

6 (a) JUDICIAL DEPORTATION.—Section 242A of the

7 Immigration and Nationality Act (8 U.S.C. 1252a) is

8 amended by adding at the end the following new sub9 section:

10 ‘‘(d) JUDICIAL DEPORTATION.—

11 ‘‘(1) AUTHORITY.—Notwithstanding any other

12 provision of this Act, a United States district court

13 shall have jurisdiction to enter a judicial order of de14 portation at the time of sentencing against an alien

15 whose criminal conviction causes such alien to be de16 portable under section 241(a)(2)(A)(iii) (relating to

17 conviction of an aggravated felony), if such an order

18 has been requested prior to sentencing by the United

19 States Attorney with the concurrence of the Com20 missioner.

21 ‘‘(2) PROCEDURE.—

22 ‘‘(A) The United States Attorney shall pro23 vide notice of intent to request judicial deporta-
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1 tion promptly after the entry in the record of

2 an adjudication of guilt or guilty plea. Such no3 tice shall be provided to the court, to the Serv4 ice, to the alien, and to the alien’s counsel of

5 record.

6 ‘‘(B) Notwithstanding section 242B, the

7 United States Attorney, with the concurrence of

8 the Commissioner, shall file at least 20 days

9 prior to the date set for sentencing a charge

10 containing factual allegations regarding the

11 alienage of the defendant and satisfaction by

12 the defendant of the definition of aggravated

13 felony.

14 ‘‘(C) If the court determines that the de15 fendant has presented substantial evidence to

16 establish prima facie eligibility for relief from

17 deportation under section 212(c), the Commis18 sioner shall provide the court with a rec19 ommendation and report regarding the alien’s

20 eligibility for relief under such section. The

21 court shall either grant or deny the relief

22 sought.

23 ‘‘(D)(i) The alien shall have a reasonable

24 opportunity to examine the evidence against

25 him or her, to present evidence on his or her
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1 own behalf, and to cross-examine witnesses pre2 sented by the Government.

3 ‘‘(ii) The court, for the purposes of deter4 mining whether to enter an order described in

5 paragraph (1), shall only consider evidence that

6 would be admissible in proceedings conducted

7 pursuant to section 242(b).

8 ‘‘(iii) Nothing in this subsection shall limit

9 the information a court of the United States

10 may receive or consider for the purposes of im11 posing an appropriate sentence.

12 ‘‘(iv) The court may order the alien de13 ported if the Attorney General demonstrates by

14 clear and convincing evidence that the alien is

15 deportable under this Act.

16 ‘‘(3) NOTICE, APPEAL, AND EXECUTION OF JU17 DICIAL ORDER OF DEPORTATION.—

18 ‘‘(A)(i) A judicial order of deportation or

19 denial of such order may be appealed by either

20 party to the court of appeals for the circuit in

21 which the district court is located.

22 ‘‘(ii) Except as provided in clause (iii),

23 such appeal shall be considered consistent with

24 the requirements described in section 106.
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1 ‘‘(iii) Upon execution by the defendant of

2 a valid waiver of the right to appeal the convic3 tion on which the order of deportation is based,

4 the expiration of the period described in section

5 106(a)(1), or the final dismissal of an appeal

6 from such conviction, the order of deportation

7 shall become final and shall be executed at the

8 end of the prison term in accordance with the

9 terms of the order. If the conviction is reversed

10 on direct appeal, the order entered pursuant to

11 this section shall be void.

12 ‘‘(B) As soon as is practicable after entry

13 of a judicial order of deportation, the Commis14 sioner shall provide the defendant with written

15 notice of the order or deportation, which shall

16 designate the defendant’s country of choice for

17 deportation and any alternate country pursuant

18 to section 243(a).

19 ‘‘(4) DENIAL OF JUDICIAL ORDER.—Denial of a

20 request for a judicial order of deportation shall not

21 preclude the Attorney General from initiating depor22 tation proceedings pursuant to section 242 upon the

23 same ground of deportability or upon any other

24 ground of deportability provided under section

25 241(a).’’.
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1 (b) TECHNICAL AMENDMENT.—The ninth sentence

2 of section 242(b) of the Immigration and Nationality Act

3 (8 U.S.C. 1252(b)) is amended by striking ‘‘The’’ and in4 serting ‘‘Except as provided in section 242A(d), the’’.

5 (c) RULE OF CONSTRUCTION.—Nothing in this sec6 tion may be construed to alter the privilege of being rep7 resented at no expense to the Government set forth in sec8 tion 292 of the Immigration and Nationality Act.

9 (d) EFFECTIVE DATE.—The amendments made by

10 this section shall apply to all aliens whose adjudication of

11 guilt or guilty plea is entered in the record after the date

12 of enactment of this Act.

13 SEC. 4. RESTRICTING DEFENSES TO DEPORTATION FOR

14 CERTAIN CRIMINAL ALIENS.

15 (a) DEFENSES BASED ON SEVEN YEARS OF PERMA16 NENT RESIDENCE.—The last sentence of section 212(c)

17 of the Immigration and Nationality Act (8 U.S.C.

18 1182(c)) is amended by striking ‘‘has served for such fel19 ony or felonies’’ and all that follows through the period

20 and inserting ‘‘has been sentenced for such felony or felo21 nies to a term of imprisonment of at least 5 years, if the

22 time for appealing such conviction or sentence has expired

23 and the sentence has become final. For purposes of this

24 section, the term ‘sentence’ does not include a sentence

25 the execution of which was suspended in its entirety.’’.
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1 (b) DEFENSES BASED ON WITHHOLDING OF DEPOR2 TATION.—Section 243(h)(2) of the Immigration and Na3 tionality Act (8 U.S.C. 1253(h)(2)) is amended—

4 (1) by striking the final sentence and inserting

5 the following new subparagraph:

6 ‘‘(E) the alien has been convicted of an ag7 gravated felony.’’; and

8 (2) by striking ‘‘or’’ at the end of subparagraph

9 (C) and inserting ‘‘or’’ at the end of subparagraph

10 (D).

11 SEC. 5. MISCELLANEOUS AND TECHNICAL CHANGES.

12 (a) FORM OF DEPORTATION HEARINGS.—The sec13 ond sentence of section 242(b) of the Immigration and

14 Nationality Act (8 U.S.C. 1252(b)) is amended by insert15 ing before the period the following: ‘‘; except that nothing

16 in this subsection shall preclude the Attorney General

17 from authorizing proceedings by electronic or telephonic

18 media, in the discretion of the special inquiry officer, or,

19 where waived or agreed to by the parties, in the absence

20 of the alien.’’.

21 (b) CONSTRUCTION OF EXPEDITED DEPORTATION

22 REQUIREMENTS.—No amendment made by this Act and

23 nothing in section 242(i) of the Immigration and Nation24 ality Act (8 U.S.C. 1252(i)) shall be construed to create

25 any substantive or procedural right or benefit that is le-
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1 gally enforceable by any party against the United States

2 or its agencies or officers or any other person.

3 SEC. 6. CRIMINAL ALIEN TRACKING CENTER.

4 (a) OPERATION.—The Attorney General shall, under

5 the authority of section 242(a)(3)(A) of the Immigration

6 and Nationality Act (8 U.S.C. 1252(a)(3)(A)), operate a

7 criminal alien tracking center.

8 (b) PURPOSE.—The criminal alien tracking center

9 shall be used to assist Federal, State, and local law en10 forcement agencies in identifying and locating aliens who

11 may be subject to deportation by reason of their conviction

12 of aggravated felonies.

13 SEC. 7. EXTENSION OF VISA WAIVER PILOT PROGRAM.

14 Section 217(f) of the Immigration and Nationality

15 Act (8 U.S.C. 1187(f)) is amended by striking ‘‘ending’’

16 and all that follows through the period and inserting ‘‘end17 ing on October 7, 1994’’.

18 SEC. 8. CREATION OF PROBATIONARY STATUS FOR PARTIC19 IPANT COUNTRIES IN THE VISA WAIVER PRO20 GRAM.

21 Section 217 of the Immigration and Nationality Act

22 (8 U.S.C. 1187) is amended—

23 (1) in subsection (a)(2)(B) by inserting before

24 the period ‘‘or is designated as a pilot program
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1 country with probationary status under subsection

2 (g)’’;

3 (2) by adding at the end the following new sub4 section:

5 ‘‘(g) PILOT PROGRAM COUNTRY WITH PROBATION6 ARY STATUS.—

7 ‘‘(1) IN GENERAL.—The Attorney General and

8 the Secretary of State acting jointly may designate

9 any country as a pilot program country with proba10 tionary status if it meets the requirements of para11 graph (2).

12 ‘‘(2) QUALIFICATIONS.—A country may not be

13 designated as a pilot program country with proba14 tionary status unless the following requirements are

15 met:

16 ‘‘(A) NONIMMIGRANT VISA REFUSAL RATE

17 FOR PREVIOUS 2-YEAR PERIOD.—The average

18 number of refusals of nonimmigrant visitor

19 visas for nationals of the country during the

20 two previous full fiscal years was less than 3.5

21 percent of the total number of nonimmigrant

22 visitor visas for nationals of that country which

23 were granted or refused during those years.

24 ‘‘(B) NONIMMIGRANT VISA REFUSAL RATE

25 FOR PREVIOUS YEAR.—The number of refusals
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1 of nonimmigrant visitor visas for nationals of

2 the country during the previous full fiscal year

3 was less than 3 percent of the total number of

4 nonimmigrant visitor visas for nationals of that

5 country which were granted or refused during

6 that year.

7 ‘‘(C) LOW EXCLUSIONS AND VIOLATIONS

8 RATE FOR PREVIOUS YEAR.—The sum of—

9 ‘‘(i) the total number of nationals of

10 that country who were excluded from ad11 mission or withdrew their application for

12 admission during the preceding fiscal year

13 as a nonimmigrant visitor, and

14 ‘‘(ii) the total number of nationals of

15 that country who were admitted as non16 immigrant visitors during the preceding

17 fiscal year and who violated the terms of

18 such admission,

19 was less than 1.5 percent of the total number

20 of nationals of that country who applied for ad21 mission as nonimmigrant visitors during the

22 preceding fiscal year.

23 ‘‘(D) MACHINE READABLE PASSPORT PRO24 GRAM.—The government of the country certifies

25 that it has or is in the process of developing a
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1 program to issue machine-readable passports to

2 its citizens.

3 ‘‘(3) CONTINUING AND SUBSEQUENT QUALI4 FICATIONS FOR PILOT PROGRAM COUNTRIES WITH

5 PROBATIONARY STATUS.—The designation of a

6 country as a pilot program country with probation7 ary status shall terminate if either of the following

8 occurs:

9 ‘‘(A) The sum of—

10 ‘‘(i) the total number of nationals of

11 that country who were excluded from ad12 mission or withdrew their application for

13 admission during the preceding fiscal year

14 as a nonimmigrant visitor, and

15 ‘‘(ii) the total number of nationals of

16 that country who were admitted as visitors

17 during the preceding fiscal year and who

18 violated the terms of such admission,

19 is more than 2.0 percent of the total number of

20 nationals of that country who applied for ad21 mission as nonimmigrant visitors during the

22 preceding fiscal year.

23 ‘‘(B) The country is not designated as a

24 pilot program country under subsection (c)

25 within 3 fiscal years of its designation as a pilot
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1 program country with probationary status

2 under this subsection.’’.

3 ‘‘(4) DESIGNATION OF PILOT PROGRAM COUN4 TRIES WITH PROBATIONARY STATUS AS PILOT PRO5 GRAM COUNTRIES.—In the case of a country which

6 was a pilot program country with probationary sta7 tus in the preceding fiscal year, a country may be

8 designated by the Attorney General and the Sec9 retary of State, acting jointly, as a pilot program

10 country under subsection (c) if—

11 ‘‘(A) the total of the number of nationals

12 of that country who were excluded from admis13 sion or withdrew their application for admission

14 during the preceding fiscal year as a non15 immigrant visitor, and

16 ‘‘(B) the total number of nationals of that

17 country who were admitted as nonimmigrant

18 visitors during the preceding fiscal year and

19 who violated the terms of such admission,

20 was less than 2 percent of the total number of na21 tionals of that country who applied for admission as

22 nonimmigrant visitors during such preceding fiscal

23 year.’’; and
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1 (3) in subsection (c)(2) by striking ‘‘A country’’

2 and inserting ‘‘Except as provided in subsection

3 (g)(4), a country’’.

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