I 

108TH CONGRESS 

2D SESSION H. R. 4591 

To restore civil liberties under the First Amendment, the Immigration and 

Nationality Act, and the Foreign Intelligence Surveillance Act. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 16, 2004 

Mr. BERMAN (for himself and Mr. DELAHUNT) introduced the following bill; 

which was referred to the Committee on the Judiciary, and in addition 

to the Select Committee on Intelligence (Permanent Select), 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 restore civil liberties under the First Amendment, the 

Immigration and Nationality Act, and the Foreign Intelligence Surveillance Act. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Civil Liberties Restora5 tion Act of 2004’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 
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1 (1) Fighting terrorism is a priority for our Na2 tion. 

3 (2) As Federal, State, and local law enforce4 ment work tirelessly every day to prevent another 

5 terrorist attack, our Nation must continue to work 

6 to ensure that law enforcement have the legal tools 

7 and resources to do their job. 

8 (3) At the same time, steps that are taken to 

9 protect the United States from terrorism should not 

10 undermine constitutional rights and protections. 

11 (4) Some of the steps taken by the Administra12 tion since September 11, 2001, however, have under13 mined constitutional rights and protections. 

14 (5) Our nation must strive for both freedom 

15 and security. 

16 (6) This Act seeks to restore essential rights 

17 and protections without compromising our Nation’s 

18 safety. 

19 TITLE I—RESTORING FIRST 

20 AMENDMENT RIGHTS 

21 SEC. 101. LIMITATION ON CLOSED IMMIGRATION HEAR22 INGS. 

23 (a) IN GENERAL.—Section 240 of the Immigration 

24 and Nationality Act (8 U.S.C. 1229a) is amended— 
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1 (1) by redesignating subsection (e) as sub2 section (f); and 

3 (2) by inserting after subsection (d) the fol4 lowing new subsection: 

5 ‘‘(e) STANDARDS FOR CLOSING REMOVAL HEAR6 INGS.— 

7 ‘‘(1) IN GENERAL.—Subject to paragraph (2), a 

8 removal proceeding held pursuant to this section 

9 shall be open to the public. 

10 ‘‘(2) EXCEPTIONS.—Portions of a removal pro11 ceeding held pursuant to this section may be closed 

12 to the public by an immigration judge on a case by 

13 case basis, when necessary— 

14 ‘‘(A) to preserve the confidentiality of ap15 plications for asylum, withholding of removal, 

16 relief under the Convention Against Torture 

17 and Other Cruel, Inhuman or Degrading Treat18 ment or Punishment, the Violence Against 

19 Women Act of 1994 (Public Law 103–322; 108 

20 Stat. 1902), or the Victims of Trafficking and 

21 Violence Prevention Act of 2000 (Public Law 

22 106–386; 114 Stat. 1464), or other applications 

23 for relief involving confidential personal infor24 mation or where portions of the removal hear-
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1 ing involve minors or issues relating to domestic 

2 violence, all with the consent of the alien; 

3 ‘‘(B) to prevent the disclosure of classified 

4 information that threatens the national security 

5 of the United States and the safety of the 

6 American people; or 

7 ‘‘(C) to prevent the disclosure of the iden8 tity of a confidential informant. 

9 ‘‘(3) COMPELLING GOVERNMENT INTEREST.— 

10 In order for portions of removal proceedings to be 

11 closed to the public in accordance with this sub12 section, the government must show that such closing 

13 of the proceedings is necessitated by a compelling 

14 governmental interest and is narrowly tailored to 

15 serve that interest.’’. 

16 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

17 Section 240(b) of the Immigration and Nationality Act (8 

18 U.S.C. 1229a(b)) is amended— 

19 (1) in paragraph (5)(C)(i), by striking ‘‘sub20 section (e)(1)’’ and inserting ‘‘subsection (f)(1)’’; 

21 and 

22 (2) in paragraph (7), by striking ‘‘subsection 

23 (e)(1)’’ and inserting ‘‘subsection (f)(1)’’. 
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1 TITLE II—PROVIDING DUE 

2 PROCESS FOR INDIVIDUALS 

3 SEC. 201. TIMELY SERVICE OF NOTICE. 

4 (a) IN GENERAL.—Section 236 of the Immigration 

5 and Nationality Act (8 U.S.C. 1226) is amended by add6 ing at the end the following: 

7 ‘‘(f) NOTICE OF CHARGES.—The Secretary of Home8 land Security shall serve a notice to appear on every alien 

9 arrested or detained under this Act, except those certified 

10 under section 236A(a)(3), within 48 hours of the arrest 

11 or detention of such alien. Any alien, except those certified 

12 under section 236A(a)(3), held for more than 48 hours 

13 shall be brought before an immigration judge within 72 

14 hours of the arrest or detention of such alien. The Sec15 retary of Homeland Security shall— 

16 ‘‘(1) document when a notice to appear is 

17 served on a detainee in order to determine compli18 ance by the Department of Homeland Security with 

19 the 48-hour notice requirement; and 

20 ‘‘(2) submit to the Committees on the Judiciary 

21 of the Senate and the House of Representatives an 

22 annual report concerning the Department of Home23 land Security’s compliance with such notice require24 ment.’’. 
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1 (b) APPLICABILITY OF OTHER LAW.—Nothing in 

2 section 236(f) of the Immigration and Nationality Act, as 

3 added by subsection (a), shall be construed to repeal sec4 tion 236A of such Act (8 U.S.C. 1226a). 

5 SEC. 202. INDIVIDUALIZED BOND DETERMINATIONS. 

6 (a) IN GENERAL.—Section 236(a) of the Immigra7 tion and Nationality Act (8 U.S.C. 1226(a)) is amended— 

8 (1) by striking ‘‘On a warrant’’ and inserting 

9 the following: 

10 ‘‘(1) IN GENERAL.—On a warrant’’; 

11 (2) by striking ‘‘Except as provided’’ and all 

12 that follows through the end and inserting the fol13 lowing: ‘‘This subsection shall apply to all aliens de14 tained pending a decision on their removal or admis15 sion, regardless of whether or not they have been ad16 mitted to the United States, including any alien 

17 found to have a credible fear of persecution under 

18 section 235(b)(1)(B) or any alien admitted or seek19 ing admission under the visa waiver program pursu20 ant to section 217. Except as provided in subsection 

21 (c) and pending such decision, the Secretary of 

22 Homeland Security shall— 

23 ‘‘(A) make an individualized determination 

24 as to whether the alien should be released pend25 ing administrative and judicial review, to in-
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1 clude a determination of whether the alien 

2 poses a danger to the safety of other persons or 

3 property and is likely to appear for future 

4 scheduled proceedings; and 

5 ‘‘(B) grant the alien release pending ad6 ministrative and judicial review under reason7 able bond or other conditions, including condi8 tional parole, that will reasonably assure the 

9 presence of the alien at all future proceedings, 

10 unless the Secretary of Homeland Security de11 termines under subparagraph (A) that the alien 

12 poses a danger to the safety of other persons or 

13 property or is unlikely to appear for future pro14 ceedings. 

15 ‘‘(2) INDIVIDUALIZED DETERMINATIONS.—An 

16 individualized determination made by the Secretary 

17 of Homeland Security pursuant to paragraph (1)(A) 

18 shall be reviewable at a hearing held before an immi19 gration judge pursuant to section 240. An immigra20 tion judge who reviews an initial bond determination 

21 by the Secretary of Homeland Security, or who 

22 makes a bond determination prior to a decision by 

23 the Secretary of Homeland Security, shall apply the 

24 same standards set forth in subparagraphs (A) and 

25 (B) of paragraph (1).’’. 
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1 (b) REVOCATION OF BOND OR PAROLE.—Section 

2 236(b) of the Immigration and Nationality Act (8 U.S.C. 

3 1226(b)) is amended by striking ‘‘The Attorney General’’ 

4 and all that follows through the period and inserting the 

5 following: ‘‘The bond or parole determination made pursu6 ant to subsection (a)(1)(B) may be revoked or modified 

7 only by an immigration judge in proceedings held pursu8 ant to section 240, and only if the party seeking to revoke 

9 or modify the bond or parole determination can establish 

10 a change in circumstances. The administrative decision 

11 finding the alien removable does not, in and of itself, con12 stitute a change in circumstances. At such a hearing, if 

13 changed circumstances are established, the immigration 

14 judge shall make a new individualized determination in the 

15 manner described in subsection (a).’’. 

16 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 

17 Section 236 of the Immigration and Nationality Act (8 

18 U.S.C. 1226) is amended— 

19 (1) by striking ‘‘Attorney General’’ each place 

20 that term appears and inserting ‘‘Secretary of 

21 Homeland Security’’; and 

22 (2) in subsection (e), by striking ‘‘Attorney 

23 General’s’’ and inserting ‘‘Secretary of Homeland 

24 Security’s’’. 
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1 SEC. 203. LIMITATION ON STAY OF A BOND. 

2 Section 236 of the Immigration and Nationality Act 

3 (8 U.S.C. 1226), as amended by section 201, is further 

4 amended by adding at the end the following: 

5 ‘‘(g) STAY OF A BOND DETERMINATION.—An order 

6 issued by an immigration judge to release an alien may 

7 be stayed by the Board of Immigration Review, for not 

8 more than 30 days, only if the Government dem9 onstrates— 

10 ‘‘(1) the likelihood of success on the merits; 

11 ‘‘(2) irreparable harm to the Government if a 

12 stay is not granted; 

13 ‘‘(3) that the potential harm to the Government 

14 outweighs potential harm to alien; and 

15 ‘‘(4) that the grant of a stay is in the interest 

16 of the public.’’. 

17 SEC. 204. IMMIGRATION REVIEW COMMISSION. 

18 (a) ESTABLISHMENT OF COMMISSION.— 

19 (1) IN GENERAL.—There is established within 

20 the Department of Justice an independent regu21 latory agency to be known as the Immigration Re22 view Commission (referred to in this section as the 

23 ‘‘Commission’’). The Executive Office of Immigra24 tion Review is hereby abolished and replaced with 

25 such Commission. 
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1 (2) TRANSFER OF AUTHORITY.—The Commis2 sion shall perform all administrative, appellate, and 

3 adjudicatory functions that were, prior to the date of 

4 enactment of this Act, the functions of the Executive 

5 Office of Immigration Review or were performed by 

6 any officer or employee of the Executive Office of 

7 Immigration Review in the capacity of such officer 

8 or employee. Such functions shall not include the 

9 policy-making, policy-implementation, investigatory, 

10 or prosecutorial functions of the Department of 

11 Homeland Security. 

12 (3) ORGANIZATION.—The Commission shall 

13 consist of: 

14 (A) The Office of the Director. 

15 (B) The Board of Immigration Review. 

16 (C) The Office of the Chief Immigration 

17 Judge. 

18 (D) The Office of the Chief Administrative 

19 Hearing Officer. 

20 (b) OFFICE OF THE DIRECTOR.— 

21 (1) APPOINTMENT.—There shall be as the head 

22 of the Commission, a Director who shall be ap23 pointed by the President with the advice and consent 

24 of the Senate. 
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1 (2) TRANSFER OF OFFICES.—The following of2 ficers shall be transferred from the Executive Office 

3 for Immigration Review to the Office of the Director 

4 for the Commission: 

5 (A) Deputy Director. 

6 (B) General Counsel. 

7 (C) Pro Bono Coordinator. 

8 (D) Public Affairs. 

9 (E) Assistant Director of Management 

10 Programs. 

11 (F) Equal Employment Opportunity. 

12 (3) RESPONSIBILITIES.— 

13 (A) The Director shall oversee the admin14 istration of the Commission, and the creation of 

15 rules and regulations affecting the administra16 tion of the courts. 

17 (B) The Director shall appoint a Deputy 

18 Director to assist with the duties of the Direc19 tor and shall have the power to appoint such 

20 administrative assistants, attorneys, clerks, and 

21 other personnel as may be needed. 

22 (c) BOARD OF IMMIGRATION REVIEW.— 

23 (1) IN GENERAL.—The Board of Immigration 

24 Review (referred to in this section as the ‘‘Board’’) 
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1 shall perform the appellate functions of the Commis2 sion. 

3 (2) APPOINTMENT.—The Board shall be com4 posed of a Chairperson and not less than 14 other 

5 immigration appeals judges, appointed by the Presi6 dent, in consultation with the Director. The term of 

7 office of each member of the Board shall be 6 years. 

8 (3) CURRENT MEMBERS.—Each individual who 

9 is serving as a member of the Board on the date of 

10 enactment of this Act shall be appointed to the 

11 Board utilizing a system of staggered terms of ap12 pointment based on seniority. 

13 (4) MEMBERS.—The Chairperson and each 

14 other member of the Board shall be an attorney in 

15 good standing of a bar of a State or the District of 

16 Columbia and shall have at least 7 years of profes17 sional, legal expertise in immigration and nationality 

18 law. 

19 (5) CHAIRPERSON DUTIES.—The Chairperson 

20 shall— 

21 (A) be responsible, on behalf of the Board, 

22 for the administrative operations of the Board 

23 and shall have the power to appoint such ad24 ministrative assistants, attorneys, clerks, and 
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1 other personnel as may be needed for that pur2 pose; 

3 (B) direct, supervise, and establish internal 

4 operating procedures and policies of the Board; 

5 and 

6 (C) designate a member of the Board to 

7 act as Chairperson in the Chairperson’s absence 

8 or unavailability. 

9 (6) BOARD MEMBERS DUTIES.—In deciding the 

10 cases before the Board, the Board shall exercise its 

11 independent judgment and discretion and may take 

12 any action, consistent with its authorities under this 

13 section and regulations established in accordance 

14 with this section, that is appropriate and necessary 

15 for the disposition of such cases. 

16 (7) JURISDICTION.—The Board shall have— 

17 (A) such jurisdiction as was, prior to the 

18 date of enactment of this Act, provided by stat19 ute or regulation to the Board of Immigration 

20 Appeals; 

21 (B) de novo review of any decision by an 

22 immigration judge, and any final order of re23 moval; and 

24 (C) retention of jurisdiction over any case 

25 of an alien removed by the United States if the 
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1 alien’s case was pending for consideration be2 fore the Board prior to removal of the alien. 

3 (8) ACTING IN PANELS.— 

4 (A) IN GENERAL.—All cases shall be sub5 ject to review by a 3 member panel. The Chair6 person shall divide the Board into 3 member 

7 panels and designate a presiding member of 

8 each panel such that— 

9 (i) a majority of the number of Board 

10 members authorized to constitute a panel 

11 shall constitute a quorum for such panel; 

12 and 

13 (ii) each panel may exercise the ap14 propriate authority of the Board that is 

15 necessary for the adjudication of cases be16 fore it. 

17 (B) FINAL DECISION.—A final decision of 

18 a panel shall be considered to be a final deci19 sion of the Board. 

20 (9) EN BANC PROCESS.— 

21 (A) IN GENERAL.—The Board may on its 

22 own motion, by a majority vote of the Board 

23 members, or by direction of the Chairperson, 

24 consider any case as the full Board en banc, or 

25 reconsider as the full Board en banc any case 
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1 that has been considered or decided by a 3- 

2 member panel or by a limited en banc panel. 

3 (B) QUORUM.—A majority of the Board 

4 members shall constitute a quorum of the 

5 Board sitting en banc. 

6 (10) DECISIONS OF THE BOARD.— 

7 (A) IN GENERAL.—The decisions of the 

8 Board shall constitute final agency action. The 

9 precedent decisions of the Board shall be bind10 ing on the Department of Homeland Security 

11 and the immigration judges. 

12 (B) AFFIRMANCE WITHOUT OPINION.— 

13 Upon individualized review of a case, the Board 

14 may affirm the decision of an immigration 

15 judge without opinion only if the decision of the 

16 immigration judge resolved all issues in the 

17 case. An affirmance without opinion signifies 

18 the Board’s adoption of the immigration judge’s 

19 findings and conclusion in total. 

20 (C) NOTICE OF APPEAL.—The decision by 

21 the Board shall include notice to the alien of 

22 the alien’s right to file a petition for review in 

23 the court of appeals within 30 days of the date 

24 of the decision. 

25 (d) OFFICE OF THE CHIEF IMMIGRATION JUDGE.— 
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1 (1) ESTABLISHMENT OF OFFICE.—There is es2 tablished within the Commission an Office of the 

3 Chief Immigration Judge to oversee all the immigra4 tion courts and their proceedings throughout the 

5 United States. The head of the office shall be the 

6 Chief Immigration Judge who shall be appointed by 

7 the Director. 

8 (2) DUTIES OF THE CHIEF IMMIGRATION

9 JUDGE.—The Chief Immigration Judge shall be re10 sponsible for the general supervision, direction, and 

11 procurement of resources and facilities, and for the 

12 coordination of the schedules of immigration judges 

13 to enable the judges to conduct the various pro14 grams assigned to them. The Chief Immigration 

15 Judge may be assisted by a Deputy Chief Immigra16 tion Judge and Assistant Chief Immigration Judge. 

17 (3) APPOINTMENT OF IMMIGRATION JUDGES.— 

18 (A) IN GENERAL.—Immigration judges 

19 shall be appointed by the Director, in consulta20 tion with the Chief Immigration Judge and the 

21 Chair of the Board of Immigration Review. The 

22 term of each immigration judge shall be 12 

23 years. 

24 (B) QUALIFICATIONS.—Each immigration 

25 judge, including the Chief Immigration Judge, 
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1 shall be an attorney in good standing of a bar 

2 of a State or the District of Columbia and shall 

3 have at least 7 years of professional, legal ex4 pertise in immigration and nationality law. 

5 (C) CURRENT MEMBERS.—Each individual 

6 who is serving as an immigration judge on the 

7 date of enactment of this Act shall be appointed 

8 as an immigration judge utilizing a system of 

9 staggered terms of appointment based on se10 niority. 

11 (4) DUTIES OF IMMIGRATION JUDGES.—In de12 ciding the cases before them, immigration judges 

13 shall exercise their independent judgment and dis14 cretion and may take any action, consistent with 

15 their authorities under this section and regulations 

16 established in accordance with this section, that is 

17 appropriate and necessary for the disposition of such 

18 cases. 

19 (5) JURISDICTION AND AUTHORITY OF IMMI20 GRATION COURTS.—The Immigration Courts shall 

21 have such jurisdiction as was, prior to the date of 

22 enactment of this Act, provided by statute or regula23 tion to the Immigration Courts within the Executive 

24 Office for Immigration Review. 
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1 (6) CONTEMPT AUTHORITY.—The contempt au2 thority provided to immigration judges under section 

3 240(b)(1) of the Immigration and Nationality Act (8 

4 U.S.C. 1229a(b)(1)) shall— 

5 (A) be implemented by regulation not later 

6 than 120 days after the date of enactment of 

7 this Act; 

8 (B) provide that any contempt sanctions, 

9 including any civil money penalty, shall be ap10 plicable to all parties appearing before the im11 migration judge and shall be imposed by a sin12 gle process applicable to all parties. 

13 (e) OFFICE OF THE CHIEF ADMINISTRATIVE HEAR14 ING OFFICER.— 

15 (1) IN GENERAL.—The Office of the Chief Ad16 ministrative Hearing Officer shall be headed by a 

17 Chief Administrative Hearing Officer who shall be 

18 appointed by the Director. 

19 (2) DUTIES AND RESPONSIBILITIES.—The du20 ties and responsibilities of the current Office of the 

21 Chief Administrative Hearing Officer shall be trans22 ferred to the Commission. 

23 (f) REMOVAL AND REVIEW OF JUDGES.— 
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1 (1) IN GENERAL.—Immigration judges and 

2 members of the Board of Immigration Review may 

3 be removed from office only for good cause— 

4 (A) by the Director, in consultation with 

5 the Chair of the Board, in the case of the re6 moval of a member of the Board; or 

7 (B) by the Director, in consultation with 

8 the Chief Immigration Judge, in the case of the 

9 removal of an immigration judge. 

10 (2) INDEPENDENT JUDGMENT.—No immigra11 tion judge or member of the Board shall be removed 

12 or otherwise subject to disciplinary or adverse action 

13 for their exercise of independent judgment and dis14 cretion as prescribed by subsections (c)(6) and 

15 (d)(4). 

16 (g) REGULATIONS.—Not later than 180 days after 

17 the date of enactment of this Act, the Director shall issue 

18 regulations to implement this section. 

19 TITLE III—EFFECTIVE LAW 

20 ENFORCEMENT 

21 SEC. 301. TERMINATION OF THE NSEERS PROGRAM; ESTAB22 LISHMENT OF REASONABLE PENALTIES FOR 

23 FAILURE TO REGISTER. 

24 (a) TERMINATION OF NSEERS.— 
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1 (1) IN GENERAL.—The National Security 

2 Entry-Exit Registration System (NSEERS) pro3 gram administered by the Secretary of Homeland 

4 Security is hereby terminated. 

5 (2) INTEGRATED ENTRY AND EXIT DATA SYS6 TEM.—Nothing in this section shall amend the Inte7 grated Entry and Exit Data System established in 

8 accordance with section 110 of the Illegal Immigra9 tion Reform and Immigrant Responsibility Act of 

10 1996 (8 U.S.C. 1365a). 

11 (3) ADMINISTRATIVE CLOSURE OF REMOVAL

12 PROCEEDINGS.— 

13 (A) IN GENERAL.—All removal proceedings 

14 initiated against any alien as a result of the 

15 NSEERS program shall be administratively 

16 closed. This paragraph shall apply to all aliens 

17 who were— 

18 (i) placed in removal proceedings sole19 ly for failure to comply with the require20 ments of the NSEERS program; or 

21 (ii) placed in removal proceedings 

22 while complying with the requirements of 

23 the NSEERS program and— 

24 (I) had a pending application be25 fore the Department of Labor or the 
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1 Department of Homeland Security for 

2 which there is a visa available; 

3 (II) did not have a pending appli4 cation before the Department of 

5 Labor or the Department of Home6 land Security for which there is a visa 

7 available but were eligible for an im8 migration benefit; or 

9 (III) were eligible to apply for 

10 other forms of relief from removal. 

11 (B) EXCEPTIONS.—This paragraph shall 

12 not apply in cases in which the aliens are re13 movable under— 

14 (i) section 212(a)(3) of the Immigra15 tion and Nationality Act (8 U.S.C. 

16 1182(a)(3)); or 

17 (ii) paragraph (2) or (4) of section 

18 237(a) of that Act (8 U.S.C. 1227(a)(2) or 

19 (4)). 

20 (4) MOTIONS TO REOPEN.—Notwithstanding 

21 any limitations imposed by law on motions to reopen 

22 removal proceedings, any alien who received a final 

23 order of removal as a result of the NSEERS pro24 gram shall be eligible to file a motion to reopen the 
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1 removal proceeding and apply for any relief from re2 moval that such alien may be eligible to receive. 

3 SEC. 302. EXERCISE OF PROSECUTORIAL DISCRETION. 

4 (a) SENSE OF CONGRESS REGARDING PROSECU5 TORIAL DISCRETION.— 

6 (1) FINDINGS.—Congress finds the following: 

7 (A) Exercising prosecutorial discretion is 

8 not an invitation to violate or ignore the law, 

9 rather it is a means by which the resources of 

10 the Secretary of Homeland Security may be 

11 used to best accomplish the mission of the De12 partment of Homeland Security in admin13 istering and enforcing the immigration laws of 

14 the United States. 

15 (B) Although a favorable exercise of dis16 cretion by any office within the Department of 

17 Homeland Security should be respected by 

18 other offices of such Department, unless the 

19 facts and circumstances in a specific case have 

20 changed, the exercise of prosecutorial discretion 

21 does not grant lawful status under the immigra22 tion laws, and there is no legally enforceable 

23 right to the exercise of prosecutorial discretion. 

24 (2) SENSE OF CONGRESS.—It is the sense of 

25 Congress that the exercise of prosecutorial discretion 
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1 does not lessen the commitment of the Secretary of 

2 Homeland Security to enforce the immigration laws 

3 to the best of the Secretary’s ability. 

4 (b) PROSECUTORIAL DISCRETION.—The Secretary of 

5 Homeland Security shall exercise prosecutorial discretion 

6 in deciding whether to exercise its enforcement powers 

7 against an alien. This discretion includes— 

8 (1) focusing investigative resources on par9 ticular offenses or conduct; 

10 (2) deciding whom to stop, question, and arrest; 

11 (3) deciding whether to detain certain aliens 

12 who are in custody; 

13 (4) settling or dismissing a removal proceeding; 

14 (5) granting deferred action or staying a final 

15 removal order; 

16 (6) agreeing to voluntary departure, permitting 

17 withdrawal of an application for admission, or tak18 ing other action in lieu of removing an alien; 

19 (7) pursuing an appeal; or 

20 (8) executing a removal order. 

21 (c) FACTORS FOR CONSIDERATION.—The factors 

22 that shall be taken into account in deciding whether to 

23 exercise prosecutorial discretion favorably toward an alien 

24 include— 

25 (1) the immigration status of the alien; 
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1 (2) the length of residence in the United States 

2 of the alien; 

3 (3) the criminal history of the alien; 

4 (4) humanitarian concerns; 

5 (5) the immigration history of the alien; 

6 (6) the likelihood of ultimately removing the 

7 alien; 

8 (7) the likelihood of achieving the enforcement 

9 goal by other means; 

10 (8) whether the alien is eligible or is likely to 

11 become eligible for other relief; 

12 (9) the effect of such action on the future ad13 missibility of the alien; 

14 (10) current or past cooperation by the alien 

15 with law enforcement authorities; 

16 (11) honorable service by the alien in the 

17 United States military; 

18 (12) community attention; and 

19 (13) resources available to the Department of 

20 Homeland Security. 

21 SEC. 303. CIVIL PENALTIES FOR TECHNICAL VIOLATIONS 

22 OF REGISTRATION REQUIREMENTS. 

23 (a) REGISTRATION PENALTIES.—Section 266(a) of 

24 the Immigration and Nationality Act (8 U.S.C. 1306(a)) 

25 is amended by striking ‘‘Any alien’’ and all that follows 
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1 through the period and inserting the following: ‘‘(1) A civil 

2 penalty shall be imposed, in accordance with paragraph 

3 (2), on any alien who is required to apply for registration 

4 and be fingerprinted under section 262 or 263, who will5 fully fails or refuses to make such application or be 

6 fingerprinted, and any parent or legal guardian required 

7 to apply for the registration of any alien who willfully fails 

8 or refuses to file application for the registration of such 

9 alien as required by such section. 

10 ‘‘(2) The Secretary of Homeland Security may 

11 levy a civil monetary penalty of up to— 

12 ‘‘(A) $100 for a first violation of section 

13 262 or 263; 

14 ‘‘(B) $500 for a second violation of section 

15 262 or 263; and 

16 ‘‘(C) $1,000 for each subsequent violation 

17 of section 262 or 263 after the second viola18 tion.’’. 

19 (b) OTHER PENALTIES.—Section 266(b) of the Im20 migration and Nationality Act (8 U.S.C. 1306(b)) is 

21 amended to read as follows: 

22 ‘‘(b)(1) A penalty shall be imposed, in accordance 

23 with paragraph (2), on any alien or the parent or legal 

24 guardian in the United States of any alien who fails to 

25 submit written notice to the Secretary of Homeland Secu-
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1 rity as required by section 265. No penalty shall be im2 posed with respect to a failure to submit such notice if 

3 the alien establishes that such failure was reasonably ex4 cusable or was not willful. 

5 ‘‘(2) Except as provided in paragraphs (4) and (5), 

6 the Secretary of Homeland Security shall levy a civil mon7 etary penalty of— 

8 ‘‘(A) up to $100 against an alien who fails 

9 to submit written notice in compliance with sec10 tion 265; 

11 ‘‘(B) up to $500 against an alien for a sec12 ond violation of section 265; and 

13 ‘‘(C) up to $1,000 for each subsequent vio14 lation of section 265 after the second violation. 

15 ‘‘(3) Notwithstanding any other provision of this Act, 

16 no change of immigration status shall result from failure 

17 to submit written notice as required by section 265. 

18 ‘‘(4) During the transition period, a failure to comply 

19 with section 265 shall not result in a penalty or a change 

20 in immigration status. At the conclusion of the transition 

21 period, the Secretary of Homeland Security shall collect 

22 and maintain statistics concerning all enforcement actions 

23 related to this subsection. 

24 ‘‘(5) The penalties imposed under this subsection 

25 shall not apply to an alien who previously failed to submit 
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1 a change of address prior to the date of enactment of the 

2 Civil Liberties Restoration Act of 2004 or the end of the 

3 transition period if the alien submits a change of address 

4 within 6 months after the end of the transition period. 

5 A penalty shall be imposed, in accordance with paragraph 

6 (2), on any alien who fails to submit a change of address 

7 within the 6-month period following the transition period. 

8 ‘‘(6) In this subsection, the term ‘transition period’ 

9 means the period beginning on the date of enactment of 

10 the Civil Liberties Restoration Act of 2004 and ending 1 

11 year after the date of enactment of such Act, at which 

12 time the Secretary of Homeland Security shall implement 

13 a system to record and preserve on a timely basis address14 es provided under section 265.’’. 

15 SEC. 304. NCIC COMPLIANCE WITH THE PRIVACY ACT. 

16 Data entered into the National Crime Information 

17 Center database must meet the accuracy requirements of 

18 section 552a of title 5, United States Code (commonly re19 ferred to as the ‘‘Privacy Act’’). 
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1 TITLE IV—PROTECTING PRI2 VACY AND ENSURING DUE 

3 PROCESS FOR TARGETS OF 

4 SURVEILLANCE 

5 SEC. 401. MODIFICATION OF AUTHORITIES ON REVIEW OF 

6 MOTIONS TO DISCOVER MATERIALS UNDER 

7 FOREIGN INTELLIGENCE SURVEILLANCE ACT 

8 OF 1978. 

9 (a) ELECTRONIC SURVEILLANCE.—Section 106(f) of 

10 the Foreign Intelligence Surveillance Act of 1978 (50 

11 U.S.C. 1806(f)) is amended— 

12 (1) in the first sentence, by striking ‘‘shall,’’ 

13 and inserting ‘‘may,’’; and 

14 (2) by striking the last sentence and inserting 

15 the following new sentence: ‘‘In making this deter16 mination, the court shall disclose, if otherwise dis17 coverable, to the aggrieved person, the counsel of the 

18 aggrieved person, or both, under the procedures and 

19 standards provided in the Classified Information 

20 Procedures Act (18 U.S.C. App.), portions of the ap21 plication, order, or other materials relating to the 

22 surveillance unless the court finds that such disclo23 sure would not assist in determining any legal or 

24 factual issue pertinent to the case.’’. 
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1 (b) PHYSICAL SEARCHES.—Section 305(g) of the 

2 Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

3 1825(g)) is amended— 

4 (1) in the first sentence, by striking ‘‘shall,’’ 

5 and inserting ‘‘may,’’; and 

6 (2) by striking the last sentence and inserting 

7 the following new sentence: ‘‘In making this deter8 mination, the court shall disclose, if otherwise dis9 coverable, to the aggrieved person, the counsel of the 

10 aggrieved person, or both, under the procedures and 

11 standards provided in the Classified Information 

12 Procedures Act (18 U.S.C. App.), portions of the ap13 plication, order, or other materials relating to the 

14 physical search, or may require the Attorney General 

15 to provide to the aggrieved person, the counsel of the 

16 aggrieved person, or both a summary of such mate17 rials unless the court finds that such disclosure 

18 would not assist in determining any legal or factual 

19 issue pertinent to the case.’’. 

20 (c) PEN REGISTERS AND TRAP AND TRACE DE21 VICES.—Section 405(f) of the Foreign Intelligence Sur22 veillance Act of 1978 (50 U.S.C. 1845(f)) is amended by 

23 striking paragraph (2) and inserting the following: 

24 ‘‘(2) Unless the court finds that such disclosure 

25 would not assist in determining any legal or factual 
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1 issue pertinent to the case, the court shall disclose, 

2 if otherwise discoverable, to the aggrieved person, 

3 the counsel of the aggrieved person, or both, under 

4 the procedures and standards provided in the Classi5 fied Information Procedures Act (18 U.S.C. App.), 

6 portions of the application, order, or other materials 

7 relating to the use of the pen register or trap and 

8 trace device, as the case may be, or evidence or in9 formation obtained or derived from the use of a pen 

10 register or trap and trace device, as the case may 

11 be.’’. 

12 (d) DISCLOSURE OF CERTAIN BUSINESS

13 RECORDS.—(1) Title V of the Foreign Intelligence Sur14 veillance Act of 1978 (50 U.S.C. 1861 et seq.) is amend15 ed— 

16 (A) by redesignating section 502 as section 

17 503; and 

18 (B) by inserting after section 501 the fol19 lowing new section: 

20 ‘‘DISCLOSURE OF CERTAIN BUSINESS RECORDS AND

21 ITEMS GOVERNED BY THE CLASSIFIED INFORMA22 TION PROCEDURES ACT

23 ‘‘SEC. 502. Any disclosure of applications, informa24 tion, or items submitted or acquired pursuant to an order 

25 issued under section 501, if such information is otherwise 

26 discoverable, shall be conducted under the procedures and 
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1 standards provided in the Classified Information Proce2 dures Act (18 U.S.C. App.).’’. 

3 (2) The table of sections for that Act is amend4 ed— 

5 (A) by redesignating the item relating to 

6 section 502 as an item relating to section 503; 

7 and 

8 (B) inserting after the item relating to sec9 tion 501 the following new item: 

‘‘502. Disclosure of certain business records and items governed by the Classified Information Procedures Act.’’. 

10 SEC. 402. DATA-MINING REPORT. 

11 (a) DEFINITIONS.—In this section: 

12 (1) DATA-MINING.—The term ‘‘data-mining’’ 

13 means a query or search or other analysis of 1 or 

14 more electronic databases, where— 

15 (A) at least 1 of the databases was ob16 tained from or remains under the control of a 

17 non-Federal entity, or the information was ac18 quired initially by another department or agen19 cy of the Federal Government for purposes 

20 other than intelligence or law enforcement; 

21 (B) the search does not use a specific indi22 vidual’s personal identifiers to acquire informa23 tion concerning that individual; and 
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1 (C) a department or agency of the Federal 

2 Government is conducting the query or search 

3 or other analysis to find a pattern indicating 

4 terrorist or other criminal activity. 

5 (2) DATABASE.—The term ‘‘database’’ does not 

6 include telephone directories, information publicly 

7 available via the Internet or available by any other 

8 means to any member of the public without payment 

9 of a fee, or databases of judicial and administrative 

10 opinions. 

11 (b) REPORTS ON DATA-MINING ACTIVITIES.— 

12 (1) REQUIREMENT FOR REPORT.—The head of 

13 each department or agency of the Federal Govern14 ment that is engaged in any activity to use or de15 velop data-mining technology shall each submit a 

16 public report to Congress on all such activities of the 

17 department or agency under the jurisdiction of that 

18 official. 

19 (2) CONTENT OF REPORT.—A report submitted 

20 under paragraph (1) shall include, for each activity 

21 to use or develop data-mining technology that is re22 quired to be covered by the report, the following in23 formation: 
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1 (A) A thorough description of the data2 mining technology and the data that will be 

3 used. 

4 (B) A thorough discussion of the plans for 

5 the use of such technology and the target dates 

6 for the deployment of the data-mining tech7 nology. 

8 (C) An assessment of the likely efficacy of 

9 the data-mining technology in providing accu10 rate and valuable information consistent with 

11 the stated plans for the use of the technology. 

12 (D) An assessment of the likely impact of 

13 the implementation of the data-mining tech14 nology on privacy and civil liberties. 

15 (E) A list and analysis of the laws and 

16 regulations that govern the information to be 

17 collected, reviewed, gathered, and analyzed with 

18 the data-mining technology and a description of 

19 any modifications of such laws that will be re20 quired to use the information in the manner 

21 proposed under such program. 

22 (F) A thorough discussion of the policies, 

23 procedures, and guidelines that are to be devel24 oped and applied in the use of such technology 

25 for data-mining in order to— 
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1 (i) protect the privacy and due process 

2 rights of individuals; and 

3 (ii) ensure that only accurate informa4 tion is collected and used. 

5 (G) A thorough discussion of the proce6 dures allowing individuals whose personal infor7 mation will be used in the data-mining tech8 nology to be informed of the use of their per9 sonal information and what procedures are in 

10 place to allow for individuals to opt out of the 

11 technology. If no such procedures are in place, 

12 a thorough explanation as to why not. 

13 (H) Any necessary classified information in 

14 an annex that shall be available to the Com15 mittee on Governmental Affairs, the Committee 

16 on the Judiciary, and the Committee on Appro17 priations of the Senate and the Committee on 

18 Homeland Security, the Committee on the Judi19 ciary, and the Committee on Appropriations of 

20 the House of Representatives. 

21 (3) TIME FOR REPORT.—Each report required 

22 under paragraph (1) shall be— 

23 (A) submitted not later than 90 days after 

24 the date of enactment of this Act; and 
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1 (B) updated once a year and include any 

2 new data-mining technologies. 

3 SEC. 403. PRIVACY PROTECTIONS ON GOVERNMENT AC4 CESS TO LIBRARY, BOOKSELLER, AND OTHER 

5 PERSONAL RECORDS UNDER FOREIGN IN6 TELLIGENCE SURVEILLANCE ACT OF 1978. 

7 (a) APPLICATIONS FOR ORDERS.—Subsection (b) of 

8 section 501 of the Foreign Intelligence Surveillance Act 

9 of 1978 (50 U.S.C. 1861) is amended— 

10 (1) in paragraph (1), by striking ‘‘and’’ at the 

11 end; 

12 (2) in paragraph (2), by striking the period at 

13 the end and inserting ‘‘; and’’; and 

14 (3) by adding at the end the following new 

15 paragraph: 

16 ‘‘(3) shall specify that there are specific and 

17 articulable facts giving reason to believe that the 

18 person to whom the records pertain is a foreign 

19 power or an agent of a foreign power.’’. 

20 (b) ORDERS.—Subsection (c)(1) of that section is 

21 amended by striking ‘‘finds’’ and all that follows and in22 serting ‘‘finds that— 

23 ‘‘(A) there are specific and articulable 

24 facts giving reason to believe that the person to 
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1 whom the records pertain is a foreign power or 

2 an agent of a foreign power; and 

3 ‘‘(B) the application meets the other re4 quirements of this section.’’. 

5 (c) OVERSIGHT OF REQUESTS FOR PRODUCTION OF

6 RECORDS.—Section 502 of that Act (50 U.S.C. 1862) is 

7 amended— 

8 (1) in subsection (a), by striking ‘‘the Perma9 nent’’ and all that follows through ‘‘the Senate’’ and 

10 inserting ‘‘the Permanent Select Committee on Intel11 ligence and the Committee on the Judiciary of the 

12 House of Representatives and the Select Committee 

13 on Intelligence and the Committee on the Judiciary 

14 of the Senate’’; and 

15 (2) in subsection (b), by striking ‘‘On a semi16 annual basis,’’ and all that follows through ‘‘a report 

17 setting forth’’ and inserting ‘‘The report of the At18 torney General to the Committees on the Judiciary 

19 of the House of Representatives and the Senate 

20 under subsection (a) shall set forth’’. 

Æ