[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4437 Reported in House (RH)]
Union Calendar No. 192
109th CONGRESS
1st Session
H. R. 4437
[Report No. 109-345, Part I]
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
December 13, 2005
Reported from the Committee on the Judiciary with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
December 13, 2005
The Committee on Homeland Security discharged
December 13, 2005
Referred to the Committee on Education and the Workforce for a period
ending not later than December 14, 2005, for consideration of such
provisions of the bill and amendment as fall within the jurisdiction of
that committee pursuant to clause 1(e) rule X; and to the Committee on
Ways and Means for a period ending not later than December 14, 2005,
for consideration of such provisions of the bill and amendment as fall
within the jurisdiction of that committee pursuant to clause 1(t) rule
X
December 14, 2005
Additional sponsors: Mr. Forbes, Mr. Burton of Indiana, Mr. Dreier, Mr.
Stearns, Mr. Cole of Oklahoma, Mr. Culberson, Mr. Bachus, Mrs. Schmidt,
Mr. Ramstad, Mr. Thornberry, Mr. McCaul of Texas, Mr. Istook, Mr.
Peterson of Minnesota, Mr. Goodlatte, Mr. Alexander, Mr. Feeney, Mr.
Pickering, Mr. Baker, Mr. Burgess, Mr. Shuster, Mr. Wilson of South
Carolina, Mr. Poe, Mr. Kline, Mr. McHugh, Mr. Lewis of California, Mrs.
Bono, Mr. Royce, Mr. Murphy, and Mr. Ryun of Kansas
December 14, 2005
The Committees on Education and the Workforce and Ways and Means
discharged; committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
[For text of introduced bill, see copy of bill as introduced on
December 6, 2005]
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to strengthen enforcement
of the immigration laws, to enhance border security, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
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.
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.
(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 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
(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--
(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.
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:
``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,
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 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.
``(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
(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 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.''; 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 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) 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.--
(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.
``(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 jurisdiction 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 border
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 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.
(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, 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 agent-in-charge of the Office of Investigations
within United States Immigration and Customs Enforcement.
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 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.
``(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 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.
``(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.
``(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 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--
(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.--
(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 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
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 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''.
(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 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 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.
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.
``(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, 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.--
``(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 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 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 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
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 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 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:
``(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.''.
(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 Treasury, 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).--
``(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 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
(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 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.
Union Calendar No. 192
109th CONGRESS
1st Session
H. R. 4437
[Report No. 109-345, Part I]
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to strengthen enforcement
of the immigration laws, to enhance border security, and for other
purposes.
_______________________________________________________________________
December 14, 2005
The Committees on Education and the Workforce and Ways and Means
discharged; committed to the Committee of the Whole House on the State
of the Union and ordered to be printed