204
‘‘(I) TERMINATION OR NOTIFICA-
TION OF CONTINUED EMPLOYMENT.—
If the person or other entity has re-
ceived a final nonverification regard-
ing an individual, the person or entity 
may terminate employment of the in-
dividual (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 en-
tity 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 fail-
ure is deemed to constitute a violation 
of subsection (a)(1)(A) with respect to 
that individual. 
‘‘(vi) 
CONTINUED
EMPLOYMENT 
AFTER
FINAL
NONVERIFICATION.—If the
205
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
REFER-
RING.—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 subpara-
graph (B) to read as follows: 
‘‘(B) to hire, continue to employ, or to re-
cruit 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 hir-
ing an alien for employment in accordance with 
paragraph (1),’’ and inserting ‘‘after complying with 
paragraph (1),’’; and
206
(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 INDIVIDUALS.—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 IN-
DIVIDUALS.— 
‘‘(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 sub-
paragraph (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 pro-
207
vided 
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 en-
actment 
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 em-
ploys 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 con-
tains critical infrastructure (as defined in 
section 1016(e) of the Critical Infrastruc-
ture 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
208
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 pre-
viously subject to an inquiry by the person 
or entity by the date six years after the 
date of enactment of the Border Protec-
tion, Antiterrorism, and Illegal Immigra-
tion 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 Immi-
gration 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) RECRUITMENT AND REFERRAL.—As used 
in this section, the term ‘refer’ means the act of 
sending or directing a person or transmitting docu-
209
mentation or information to another, directly or in-
directly, 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 in-
cluded in the definition. However, labor service agen-
cies, whether public, private, for-profit, or nonprofit, 
that refer, dispatch, or otherwise facilitate the hiring 
of workers for any period of time by a third party 
are included in the definition whether or not they re-
ceive remuneration. 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 contin-
gency basis) are included in the definition. However, 
labor service agencies, whether public, private, for-
profit, or nonprofit that refer, dispatch, or otherwise 
facilitate the hiring of workers for any period of 
time by a third party are included in the definition 
whether or not they receive remuneration.’’. 
SEC. 706. PENALTIES. 
Section 274A of the Immigration and Nationality Act 
(8 U.S.C. 1324a) is amended—
210
(1) in subsection (e)(4)— 
(A) in subparagraph (A), in the matter be-
fore clause (i), by inserting ‘‘, subject to para-
graphs (10) through (12),’’ 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 
and not more than $7,500’’; 
(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 
and not more than $15,000’’; 
(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 not more than $40,000’’; 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 appro-
priate.’’; 
(2) in subsection (e)(5)— 
(A) by inserting ‘‘, subject to paragraphs 
(10) through (12),’’ after ‘‘in an amount’’;
211
(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 sen-
tence: ‘‘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 rea-
sonably 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 paragraphs: 
‘‘(10) MITIGATION OF CIVIL MONEY PENALTIES 
FOR SMALLER EMPLOYERS.—In the case of imposi-
tion 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 sub-
section (a)(1)(B) for hiring by an employer, the dol-
212
lar 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 re-
duced 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.’’. 
‘‘(11) EXEMPTION FROM PENALTY FOR INITIAL 
GOOD FAITH VIOLATION.—In the case of imposition 
of a civil penalty under paragraph (4)(A) with re-
spect to a violation of subsection (a)(1)(A) or (a)(2) 
for hiring or continuation of employment or recruit-
ment or referral by person or entity and in the case 
of imposition of a civil penalty under paragraph (5)
213
for a violation of subsection (a)(1)(B) for hiring or 
recruitment or referral by a person or entity, the 
penalty otherwise imposed shall be waived if the vio-
lator establishes that it was the first such violation 
of such provision by the violator and the violator 
acted in good faith. 
‘‘(12) SAFE
HARBOR
FOR
CONTRACTORS.—A 
person or other entity shall not be liable for a pen-
alty under paragraph (4)(A) with respect to the vio-
lation of subsection (a)(1)(A), (a)(1)(B), or (a)(2) 
with respect to the hiring or continuation of employ-
ment of an unauthorized alien by a subcontractor of 
that person or entity unless the person or entity 
knew that the subcontractor hired or continued to 
employ such alien in violation of such subsection. 
(4) by amending paragraph (1) of subsection (f) 
to read as follows: 
‘‘(1) CRIMINAL PENALTY.—Any person or enti-
ty which engages in a pattern or practice of viola-
tions 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
214
(5) in subsection (f)(2), by striking ‘‘Attorney 
General’’ each place it appears and inserting ‘‘Sec-
retary of Homeland Security’’. 
SEC. 707. REPORT ON SOCIAL SECURITY CARD-BASED EM-
PLOYMENT ELIGIBILITY VERIFICATION. 
(a) REPORT.— 
(1) IN
GENERAL.—Not later 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 evalua-
tion 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 indi-
vidual (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
215
(iii) files an application for such card, 
whether as a replacement of an existing so-
cial security card or as a card issued in 
connection with the issuance of a new so-
cial 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 author-
ization 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 subpara-
graph (A) and a phone, electronic card-reading, 
or other mechanism to seek verification of em-
ployment eligibility through the use of the uni-
fied database described in subparagraph (B). 
(2) ITEMS INCLUDED IN REPORT.—The report 
under paragraph (1) shall include an evaluation of 
each of the following:
216
(A) Projected cost, including the cost to 
the Federal government, State and local govern-
ments, 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 em-
ployee compliance with immigration laws would 
be expected to improve. 
(E) Any other relevant information. 
(3) ALTERNATIVES.—The report under para-
graph (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 great-
er 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 Adminis-
tration, in consultation with the Inspectors General of the
217
Department of Treasury, the Department of Homeland 
Security, and the Department of Justice, shall send to the 
Congress an evaluation of the such report. 
SEC. 708. EXTENSION OF PREEMPTION TO REQUIRED CON-
STRUCTION OF DAY LABORER SHELTERS. 
Paragraph 274A(h)(2) of the Immigration and Na-
tionality Act (8 U.S.C. 1324a(h)(2)) is amended—
(1) by striking ‘‘imposing’’, and inserting a 
dash and ‘‘(A) imposing’’; 
(2) by striking the period at the end and insert-
ing ‘‘; and’’; and 
(3) by adding at the end the following: 
‘‘(B) Requiring as a condition of con-
ducting, continuing, or expanding a business 
that a business entity—
‘‘(i) provide, build, fund, or maintain 
a shelter, structure, or designated area for 
use by day laborers at or near its place of 
business; or 
‘‘(ii) take other steps that facilitate 
the employment of day laborers by others.’’
SEC. 709. EFFECTIVE DATE. 
This title and the amendments made by this title 
shall take effect on the date of enactment of this Act, ex-
cept that the requirements of persons and entities to com-
218
ply with the employment eligibility verification process 
takes effect on the date that is two years after such date. 
SEC. 710. LIMITATION ON VERIFICATION RESPONSIBIL-
ITIES OF COMMISSIONER OF SOCIAL SECU-
RITY. 
The Commissioner of Social Security is authorized to 
perform activities with respect to carrying out the Com-
missioner’s responsibilities in this title or the amendments 
made by this title, but only to the extent (except for the 
purpose of carrying out section 707) the Secretary of 
Homeland Security has provided, in advance, funds to 
cover the Commissioner’s full costs in carrying out such 
responsibilities. In no case shall funds from the Federal 
Old-Age and Survivors Insurance Trust Fund or the Fed-
eral Disability Insurance Trust Fund be used to carry out 
such responsibilities. 
SEC. 
711. 
REPORT 
ON 
EMPLOYMENT 
ELIGIBILITY 
VERIFICATION SYSTEM. 
Not later than one year after the implementation of 
the employment eligibility verification system and one year 
thereafter, the Secretary of Homeland Security shall sub-
mit to Congress a report on the progress and problems 
associated with implementation of the system, including 
information relating to the most efficient use of the system 
by small businesses.
219
TITLE VIII—IMMIGRATION 
LITIGATION ABUSE REDUCTION 
SEC. 801. BOARD OF IMMIGRATION APPEALS REMOVAL 
ORDER AUTHORITY. 
(a) IN GENERAL.—Section 101(a)(47) of the Immi-
gration 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 At-
torney 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 Immigra-
tion Appeals affirming such order; 
‘‘(ii) the entry by the Board of Immigration Ap-
peals 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
220
‘‘(v) the entry by another administrative officer 
of such order, at the conclusion of a process as au-
thorized by law other than under section 240.’’. 
(b) EFFECTIVE DATE.—The amendment made by 
subsection (a) shall take effect on the date of the enact-
ment 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: ‘‘Notwith-
standing any other provision of law (statutory or non-
statutory), 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 enact-
ment of this Act and shall apply to visa revocations ef-
fected before, on, or after such date.
221
SEC. 803. REINSTATEMENT. 
(a) IN GENERAL.—Section 241(a)(5) of the Immi-
gration 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, re-
gardless 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 re-
viewed; 
‘‘(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 re-
quire proceedings before an immigration judge under 
section 240 or otherwise.’’.
222
(b) JUDICIAL REVIEW.—Section 242 of the Immigra-
tion 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).— 
‘‘(1) IN GENERAL.—Notwithstanding any other 
provision of law (statutory or nonstatutory), includ-
ing 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 re-
view any cause or claim arising from or relating to 
any reinstatement under section 241(a)(5) (includ-
ing 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 VALIDITY OF THE SYS-
TEM, ITS
IMPLEMENTATION, AND
RELATED
INDI-
VIDUAL DETERMINATIONS.— 
‘‘(A) IN GENERAL.—Judicial review of de-
terminations under section 241(a)(5) and its 
implementation is available in an action insti-
tuted in the United States Court of Appeals for 
the District of Columbia Circuit, but shall be
223
limited, except as provided in subparagraph 
(B), to the following determinations: 
‘‘(i) Whether such section, or any reg-
ulation 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 Se-
curity 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
DETERMINA-
TIONS.—If a person raises an action under sub-
paragraph (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 pre-
viously ordered removed or deported, or ex-
cluded. 
‘‘(iii) Whether the petitioner has since 
illegally entered the United States.
224
‘‘(C) DEADLINES
FOR
BRINGING
AC-
TIONS.—Any action instituted under this para-
graph must be filed no later than 60 days after 
the date the challenged section, regulation, di-
rective, 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 lim-
ited 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 ille-
gally 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
225
or after that date by the Secretary of Homeland Security 
(or by the Attorney General prior to March 1, 2003), re-
gardless of the date of the original order. 
SEC. 804. WITHHOLDING OF REMOVAL. 
(a) IN GENERAL.—Section 241(b)(3) of the Immi-
gration 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 rea-
son for such threat.’’; and 
(2) in subparagraph (C), by striking ‘‘In deter-
mining whether an alien has demonstrated that the 
alien’s life or freedom would be threatened for a rea-
son 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 enact-
ment of section 101(c) of the REAL ID Act of 2005 (divi-
sion B of Public Law 109–13).
226
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 peti-
tion for judicial review not 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.’’. 
(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 certifi-
cate of reviewability, the petition for review 
shall be denied and the government shall 
not file a brief.