[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 418 Referred in Senate (RFS)]
1st Session
H. R. 418
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 14, 2005
Received
February 17, 2005
Read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
AN ACT
To establish and rapidly implement regulations for State driver's
license and identification document security standards, to prevent
terrorists from abusing the asylum laws of the United States, to unify
terrorism-related grounds for inadmissibility and removal, and to
ensure expeditious construction of the San Diego border fence.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``REAL ID Act of 2005''.
TITLE I--AMENDMENTS TO FEDERAL LAWS TO PROTECT AGAINST TERRORIST ENTRY
SEC. 101. PREVENTING TERRORISTS FROM OBTAINING RELIEF FROM REMOVAL.
(a) Conditions for Granting Asylum.--Section 208(b)(1) of the
Immigration and Nationality Act (8 U.S.C. 1158(b)(1)) is amended--
(1) by striking ``The Attorney General'' the first place
such term appears and inserting the following:
``(A) Eligibility.--The Secretary of Homeland
Security or the Attorney General'';
(2) by striking ``the Attorney General'' the second and
third places such term appears and inserting ``the Secretary of
Homeland Security or the Attorney General''; and
(3) by adding at the end the following:
``(B) Burden of proof.--
``(i) In general.--The burden of proof is
on the applicant to establish that the
applicant is a refugee, within the meaning of
section 101(a)(42)(A). To establish that the
applicant is a refugee within the meaning of
such section, the applicant must establish that
race, religion, nationality, membership in a
particular social group, or political opinion
was or will be a central reason for persecuting
the applicant.
``(ii) Sustaining burden.--The testimony of
the applicant may be sufficient to sustain the
applicant's burden without corroboration, but
only if the applicant satisfies the trier of
fact that the applicant's testimony is
credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the
applicant is a refugee. In determining whether
the applicant has met the applicant's burden,
the trier of fact may weigh the credible
testimony along with other evidence of record.
Where the trier of fact determines, in the
trier of fact's discretion, that the applicant
should provide evidence which corroborates
otherwise credible testimony, such evidence
must be provided unless the applicant does not
have the evidence and cannot reasonably obtain
the evidence without departing the United
States. The inability to obtain corroborating
evidence does not excuse the applicant from
meeting the applicant's burden of proof.
``(iii) Credibility determination.--The
trier of fact should consider all relevant
factors and may, in the trier of fact's
discretion, base the trier of fact's
credibility determination on any such factor,
including the demeanor, candor, or
responsiveness of the applicant or witness, the
inherent plausibility of the applicant's or
witness's account, the consistency between the
applicant's or witness's written and oral
statements (whenever made and whether or not
made under oath), the internal consistency of
each such statement, the consistency of such
statements with other evidence of record
(including the reports of the Department of
State on country conditions), and any
inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of
the applicant's claim. There is no presumption
of credibility.''.
(b) Withholding of Removal.--Section 241(b)(3) of the Immigration
and Nationality Act (8 U.S.C. 1231(b)(3)) is amended by adding at the
end the following:
``(C) Sustaining burden of proof; credibility
determinations.--In determining whether an alien has
demonstrated that the alien's life or freedom would be
threatened for a reason described in subparagraph (A),
the trier of fact shall determine whether the alien has
sustained the alien's burden of proof, and shall make
credibility determinations, in the manner described in
clauses (ii) and (iii) of section 208(b)(1)(B).''.
(c) Other Requests for Relief From Removal.--Section 240(c) of the
Immigration and Nationality Act (8 U.S.C. 1230(c)) is amended--
(1) by redesignating paragraphs (4), (5), and (6) as
paragraphs (5), (6), and (7), respectively; and
(2) by inserting after paragraph (3) the following:
``(4) Applications for relief from removal.--
``(A) In general.--An alien applying for relief or
protection from removal has the burden of proof to
establish that the alien--
``(i) satisfies the applicable eligibility
requirements; and
``(ii) with respect to any form of relief
that is granted in the exercise of discretion,
that the alien merits a favorable exercise of
discretion.
``(B) Sustaining burden.--The applicant must comply
with the applicable requirements to submit information
or documentation in support of the applicant's
application for relief or protection as provided by law
or by regulation or in the instructions for the
application form. In evaluating the testimony of the
applicant or other witness in support of the
application, the immigration judge will determine
whether or not the testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant has satisfied the
applicant's burden of proof. In determining whether the
applicant has met such burden, the immigration judge
shall weigh the credible testimony along with other
evidence of record. Where the immigration judge
determines in the judge's discretion that the applicant
should provide evidence which corroborates otherwise
credible testimony, such evidence must be provided
unless the applicant demonstrates that the applicant
does not have the evidence and cannot reasonably obtain
the evidence without departing from the United States.
The inability to obtain corroborating evidence does not
excuse the applicant from meeting the burden of proof.
``(C) Credibility determination.--The immigration
judge should consider all relevant factors and may, in
the judge's discretion, base the judge's credibility
determination on any such factor, including the
demeanor, candor, or responsiveness of the applicant or
witness, the inherent plausibility of the applicant's
or witness's account, the consistency between the
applicant's or witness's written and oral statements
(whenever made and whether or not made under oath), the
internal consistency of each such statement, the
consistency of such statements with other evidence of
record (including the reports of the Department of
State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to
whether an inconsistency, inaccuracy, or falsehood goes
to the heart of the applicant's claim. There is no
presumption of credibility.''.
(d) Standard of Review for Orders of Removal.--Section 242(b)(4) of
the Immigration and Nationality Act (8 U.S.C. 1252(b)(4)) is amended by
adding at the end, after subparagraph (D), the following: ``No court
shall reverse a determination made by a trier of fact with respect to
the availability of corroborating evidence, as described in section
208(b)(1)(B), 240(c)(4)(B), or 241(b)(3)(C), unless the court finds
that a reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.''.
(e) Clarification of Discretion.--Section 242(a)(2)(B) of the
Immigration and Nationality Act (8 U.S.C. 1252(a)(2)(B)) is amended--
(1) by inserting ``or the Secretary of Homeland Security''
after ``Attorney General'' each place such term appears; and
(2) in the matter preceding clause (i), by inserting ``and
regardless of whether the judgment, decision, or action is made
in removal proceedings,'' after ``other provision of law,''.
(f) Removal of Caps.--Section 209 of the Immigration and
Nationality Act (8 U.S.C. 1159) is amended--
(1) in subsection (a)(1)--
(A) by striking ``Service'' and inserting
``Department of Homeland Security''; and
(B) by striking ``Attorney General'' each place
such term appears and inserting ``Secretary of Homeland
Security or the Attorney General'';
(2) in subsection (b)--
(A) by striking ``Not more'' and all that follows
through ``asylum who--'' and inserting ``The Secretary
of Homeland Security or the Attorney General, in the
Secretary's or the Attorney General's discretion and
under such regulations as the Secretary or the Attorney
General may prescribe, may adjust to the status of an
alien lawfully admitted for permanent residence the
status of any alien granted asylum who--''; and
(B) in the matter following paragraph (5), by
striking ``Attorney General'' and inserting ``Secretary
of Homeland Security or the Attorney General''; and
(3) in subsection (c), by striking ``Attorney General'' and
inserting ``Secretary of Homeland Security or the Attorney
General''.
(g) Effective Dates.--
(1) The amendments made by paragraphs (1) and (2) of
subsection (a) shall take effect as if enacted on March 1,
2003.
(2) The amendments made by subsections (a)(3), (b), and (c)
shall take effect on the date of the enactment of this Act and
shall apply to applications for asylum, withholding, or other
removal made on or after such date.
(3) The amendment made by subsection (d) shall take effect
on the date of the enactment of this Act and shall apply to all
cases in which the final administrative removal order is or was
issued before, on, or after such date.
(4) The amendments made by subsection (e) shall take effect
on the date of the enactment of this Act and shall apply to all
cases pending before any court on or after such date.
(5) The amendments made by subsection (f) shall take effect
on the date of the enactment of this Act.
(h) Repeal.--Section 5403 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108-458) is repealed.
SEC. 102. WAIVER OF LAWS NECESSARY FOR IMPROVEMENT OF BARRIERS AT
BORDERS.
Section 102(c) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended to read as
follows:
``(c) Waiver.--
``(1) In general.--Notwithstanding any other provision of
law, the Secretary of Homeland Security shall have the
authority to waive, and shall waive, all laws such Secretary,
in such Secretary's sole discretion, determines necessary to
ensure expeditious construction of the barriers and roads under
this section.
``(2) No judicial review.--Notwithstanding any other
provision of law (statutory or nonstatutory), no court,
administrative agency, or other entity shall have
jurisdiction--
``(A) to hear any cause or claim arising from any
action undertaken, or any decision made, by the
Secretary of Homeland Security pursuant to paragraph
(1); or
``(B) to order compensatory, declaratory,
injunctive, equitable, or any other relief for damage
alleged to arise from any such action or decision.''.
SEC. 103. INADMISSIBILITY DUE TO TERRORIST AND TERRORIST-RELATED
ACTIVITIES.
(a) In General.--So much of section 212(a)(3)(B)(i) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)) as precedes
the final sentence is amended to read as follows:
``(i) In general.--Any alien who--
``(I) has engaged in a terrorist
activity;
``(II) a consular officer, the
Attorney General, or the Secretary of
Homeland Security knows, or has
reasonable ground to believe, is
engaged in or is likely to engage after
entry in any terrorist activity (as
defined in clause (iv));
``(III) has, under circumstances
indicating an intention to cause death
or serious bodily harm, incited
terrorist activity;
``(IV) is a representative (as
defined in clause (v)) of--
``(aa) a terrorist
organization (as defined in
clause (vi)); or
``(bb) a political, social,
or other group that endorses or
espouses terrorist activity;
``(V) is a member of a terrorist
organization described in subclause (I)
or (II) of clause (vi);
``(VI) is a member of a terrorist
organization described in clause
(vi)(III), unless the alien can
demonstrate by clear and convincing
evidence that the alien did not know,
and should not reasonably have known,
that the organization was a terrorist
organization;
``(VII) endorses or espouses
terrorist activity or persuades others
to endorse or espouse terrorist
activity or support a terrorist
organization;
``(VIII) has received military-type
training (as defined in section
2339D(c)(1) of title 18, United States
Code) from or on behalf of any
organization that, at the time the
training was received, was a terrorist
organization (as defined in clause
(vi)); or
``(IX) is the spouse or child of an
alien who is inadmissible under this
subparagraph, if the activity causing
the alien to be found inadmissible
occurred within the last 5 years,
is inadmissible.''.
(b) Engage in Terrorist Activity Defined.--Section 212(a)(3)(B)(iv)
of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(iv)) is
amended to read as follows:
``(iv) Engage in terrorist activity
defined.--As used in this Act, the term `engage
in terrorist activity' means, in an individual
capacity or as a member of an organization--
``(I) to commit or to incite to
commit, under circumstances indicating
an intention to cause death or serious
bodily injury, a terrorist activity;
``(II) to prepare or plan a
terrorist activity;
``(III) to gather information on
potential targets for terrorist
activity;
``(IV) to solicit funds or other
things of value for--
``(aa) a terrorist
activity;
``(bb) a terrorist
organization described in
clause (vi)(I) or (vi)(II); or
``(cc) a terrorist
organization described in
clause (vi)(III), unless the
solicitor can demonstrate by
clear and convincing evidence
that he did not know, and
should not reasonably have
known, that the organization
was a terrorist organization;
``(V) to solicit any individual--
``(aa) to engage in conduct
otherwise described in this
subsection;
``(bb) for membership in a
terrorist organization
described in clause (vi)(I) or
(vi)(II); or
``(cc) for membership in a
terrorist organization
described in clause (vi)(III)
unless the solicitor can
demonstrate by clear and
convincing evidence that he did
not know, and should not
reasonably have known, that the
organization was a terrorist
organization; or
``(VI) to commit an act that the
actor knows, or reasonably should know,
affords material support, including a
safe house, transportation,
communications, funds, transfer of
funds or other material financial
benefit, false documentation or
identification, weapons (including
chemical, biological, or radiological
weapons), explosives, or training--
``(aa) for the commission
of a terrorist activity;
``(bb) to any individual
who the actor knows, or
reasonably should know, has
committed or plans to commit a
terrorist activity;
``(cc) to a terrorist
organization described in
subclause (I) or (II) of clause
(vi) or to any member of such
an organization; or
``(dd) to a terrorist
organization described in
clause (vi)(III), or to any
member of such an organization,
unless the actor can
demonstrate by clear and
convincing evidence that the
actor did not know, and should
not reasonably have known, that
the organization was a
terrorist organization.
This clause shall not apply to any material
support the alien afforded to an organization
or individual that has committed terrorist
activity, if the Secretary of State, after
consultation with the Attorney General and the
Secretary of Homeland Security, or the Attorney
General, after consultation with the Secretary
of State and the Secretary of Homeland
Security, concludes in his sole unreviewable
discretion, that this clause should not
apply.''.
(c) Terrorist Organization Defined.--Section 212(a)(3)(B)(vi) of
the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)) is
amended to read as follows:
``(vi) Terrorist organization defined.--As
used in this section, the term `terrorist
organization' means an organization--
``(I) designated under section 219;
``(II) otherwise designated, upon
publication in the Federal Register, by
the Secretary of State in consultation
with or upon the request of the
Attorney General or the Secretary of
Homeland Security, as a terrorist
organization, after finding that the
organization engages in the activities
described in subclauses (I) through
(VI) of clause (iv); or
``(III) that is a group of two or
more individuals, whether organized or
not, which engages in, or has a
subgroup which engages in, the
activities described in subclauses (I)
through (VI) of clause (iv).''.
(d) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act, and these amendments,
and section 212(a)(3)(B) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(3)(B)), as amended by this section, shall apply to--
(1) removal proceedings instituted before, on, or after the
date of the enactment of this Act; and
(2) acts and conditions constituting a ground for
inadmissibility, excludability, deportation, or removal
occurring or existing before, on, or after such date.
SEC. 104. REMOVAL OF TERRORISTS.
(a) In General.--
(1) In general.--Section 237(a)(4)(B) of the Immigration
and Nationality Act (8 U.S.C. 1227(a)(4)(B)) is amended to read
as follows:
``(B) Terrorist activities.--Any alien who is
described in subparagraph (B) or (F) of section
212(a)(3) is deportable.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on the date of the enactment of this Act, and
the amendment, and section 237(a)(4)(B) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(4)(B)), as amended by such
paragraph, shall apply to--
(A) removal proceedings instituted before, on, or
after the date of the enactment of this Act; and
(B) acts and conditions constituting a ground for
inadmissibility, excludability, deportation, or removal
occurring or existing before, on, or after such date.
(b) Repeal.--Effective as of the date of the enactment of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law
108-458), section 5402 of such Act is repealed, and the Immigration and
Nationality Act shall be applied as if such section had not been
enacted.
SEC. 105. JUDICIAL REVIEW OF ORDERS OF REMOVAL.
(a) In General.--Section 242 of the Immigration and Nationality Act
(8 U.S.C. 1252) is amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) in subparagraph (A), by inserting
``(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'' after
``Notwithstanding any other provision of law'';
(ii) in each of subparagraphs (B) and (C),
by inserting ``(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, and except as provided in subparagraph
(D)'' after ``Notwithstanding any other
provision of law''; and
(iii) by adding at the end the following:
``(D) Judicial review of certain legal claims.--
Nothing in subparagraph (B) or (C), or in any other
provision of this Act which limits or eliminates
judicial review, shall be construed as precluding
review of constitutional claims or pure questions of
law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this
section.''; and
(B) by adding at the end the following:
``(4) Claims under the united nations convention.--
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 petition for review filed with
an appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of
any cause or claim under the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman, or Degrading
Treatment or Punishment, except as provided in subsection (e).
``(5) Exclusive means of review.--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
petition for review filed with an appropriate court of appeals
in accordance with this section shall be the sole and exclusive
means for judicial review of an order of removal entered or
issued under any provision of this Act, except as provided in
subsection (e). For purposes of this Act, in every provision
that limits or eliminates judicial review or jurisdiction to
review, the terms `judicial review' and `jurisdiction to
review' include habeas corpus review pursuant to section 2241
of title 28, United States Code, or any other habeas corpus
provision, sections 1361 and 1651 of such title, and review
pursuant to any other provision of law (statutory or
nonstatutory).'';
(2) in subsection (b)--
(A) in paragraph (3)(B), by inserting ``pursuant to
subsection (f)'' after ``unless''; and
(B) in paragraph (9), by adding at the end the
following: ``Except as otherwise provided in this
section, no court shall have jurisdiction, by habeas
corpus under section 2241 of title 28, United States
Code, or any other habeas corpus provision, by section
1361 or 1651 of such title, or by any other provision
of law (statutory or nonstatutory), to review such an
order or such questions of law or fact.''; and
(3) in subsection (g), by inserting ``(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'' after ``notwithstanding any other
provision of law''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect upon the date of the enactment of this Act and shall apply
to cases in which the final administrative order of removal,
deportation, or exclusion was issued before, on, or after the date of
the enactment of this Act.
(c) Transfer of Cases.--If an alien's case, brought under section
2241 of title 28, United States Code, and challenging a final
administrative order of removal, deportation, or exclusion, is pending
in a district court on the date of the enactment of this Act, then the
district court shall transfer the case (or the part of the case that
challenges the order of removal, deportation, or exclusion) to the
court of appeals for the circuit in which a petition for review could
have been properly filed under section 242(b)(2) of the Immigration and
Nationality Act (8 U.S.C. 1252), as amended by this section, or under
section 309(c)(4)(D) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1101 note). The court of appeals
shall treat the transferred case as if it had been filed pursuant to a
petition for review under such section 242, except that subsection
(b)(1) of such section shall not apply.
(d) Transitional Rule Cases.--A petition for review filed under
former section 106(a) of the Immigration and Nationality Act (as in
effect before its repeal by section 306(b) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1252 note))
shall be treated as if it had been filed as a petition for review under
section 242 of the Immigration and Nationality Act (8 U.S.C. 1252), as
amended by this section. 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, such petition for review shall be the sole and
exclusive means for judicial review of an order of deportation or
exclusion.
SEC. 106. DELIVERY BONDS.
(a) Definitions.--For purposes of this section:
(1) Delivery bond.--The term ``delivery bond'' means a
written suretyship undertaking for the surrender of an
individual against whom the Department of Homeland Security has
issued an order to show cause or a notice to appear, the
performance of which is guaranteed by an acceptable surety on
Federal bonds.
(2) Principal.--The term ``principal'' means an individual
who is the subject of a bond.
(3) Suretyship undertaking.--The term ``suretyship
undertaking'' means a written agreement, executed by a bonding
agent on behalf of a surety, which binds all parties to its
certain terms and conditions and which provides obligations for
the principal and the surety while under the bond and penalties
for forfeiture to ensure the obligations of the principal and
the surety under the agreement.
(4) Bonding agent.--The term ``bonding agent'' means any
individual properly licensed, approved, and appointed by power
of attorney to execute or countersign surety bonds in
connection with any matter governed by the Immigration and
Nationality Act as amended (8 U.S.C. 1101, et seq.), and who
receives a premium for executing or countersigning such surety
bonds.
(5) Surety.--The term ``surety'' means an entity, as
defined by, and that is in compliance with, sections 9304
through 9308 of title 31, United States Code, that agrees--
(A) to guarantee the performance, where
appropriate, of the principal under a bond;
(B) to perform the bond as required; and
(C) to pay the face amount of the bond as a penalty
for failure to perform.
(b) Validity, Agent not Co-Obligor, Expiration, Renewal, and
Cancellation of Bonds.--
(1) Validity.--Delivery bond undertakings are valid if such
bonds--
(A) state the full, correct, and proper name of the
alien principal;
(B) state the amount of the bond;
(C) are guaranteed by a surety and countersigned by
an agent who is properly appointed;
(D) bond documents are properly executed; and
(E) relevant bond documents are properly filed with
the Secretary of Homeland Security.
(2) Bonding agent not co-obligor, party, or guarantor in
individual capacity, and no refusal if acceptable surety.--
Section 9304(b) of title 31, United States Code, is amended by
adding at the end the following: ``Notwithstanding any other
provision of law, no bonding agent of a corporate surety shall
be required to execute bonds as a co-obligor, party, or
guarantor in an individual capacity on bonds provided by the
corporate surety, nor shall a corporate surety bond be refused
if the corporate surety appears on the current Treasury
Department Circular 570 as a company holding a certificate of
authority as an acceptable surety on Federal bonds and attached
to the bond is a currently valid instrument showing the
authority of the bonding agent of the surety company to execute
the bond.''.
(3) Expiration.--A delivery bond undertaking shall expire
at the earliest of--
(A) 1 year from the date of issue;
(B) at the cancellation of the bond or surrender of
the principal; or
(C) immediately upon nonpayment of the renewal
premium.
(4) Renewal.--Delivery bonds may be renewed annually, with
payment of proper premium to the surety, if there has been no
breach of conditions, default, claim, or forfeiture of the
bond. Notwithstanding any renewal, when the alien is
surrendered to the Secretary of Homeland Security for removal,
the Secretary shall cause the bond to be canceled.
(5) Cancellation.--Delivery bonds shall be canceled and the
surety exonerated--
(A) for nonrenewal after the alien has been
surrendered to the Department of Homeland Security for
removal;
(B) if the surety or bonding agent provides
reasonable evidence that there was misrepresentation or
fraud in the application for the bond;
(C) upon the death or incarceration of the
principal, or the inability of the surety to produce
the principal for medical reasons;
(D) if the principal is detained by any law
enforcement agency of any State, county, city, or any
politial subdivision thereof;
(E) if it can be established that the alien
departed the United States of America for any reason
without permission of the Secretary of Homeland
Security, the surety, or the bonding agent;
(F) if the foreign state of which the principal is
a national is designated pursuant to section 244 of the
Act (8 U.S.C. 1254a) after the bond is posted; or
(G) if the principal is surrendered to the
Department of Homeland Security, removal by the surety
or the bonding agent.
(6) Surrender of principal; forfeiture of bond premium.--
(A) Surrender.--At any time, before a breach of any
of the bond conditions, if in the opinion of the surety
or bonding agent, the principal becomes a flight risk,
the principal may be surrendered to the Department of
Homeland Security for removal.
(B) Forfeiture of bond premium.--A principal may be
surrendered without the return of any bond premium if
the principal--
(i) changes address without notifying the
surety, the bonding agent, and the Secretary of
Homeland Security in writing prior to such
change;
(ii) hides or is concealed from a surety, a
bonding agent, or the Secretary;
(iii) fails to report to the Secretary as
required at least annually; or
(iv) violates the contract with the bonding
agent or surety, commits any act that may lead
to a breach of the bond, or otherwise violates
any other obligation or condition of the bond
established by the Secretary.
(7) Certified copy of bond and arrest warrant to accompany
surrender.--
(A) In general.--A bonding agent or surety desiring
to surrender the principal--
(i) shall have the right to petition the
Secretary of Homeland Security or any Federal
court, without having to pay any fees or court
costs, for an arrest warrant for the arrest of
the principal;
(ii) shall forthwith be provided 2
certified copies each of the arrest warrant and
the bond undertaking, without having to pay any
fees or courts costs; and
(iii) shall have the right to pursue,
apprehend, detain, and surrender the principal,
together with certified copies of the arrest
warrant and the bond undertaking, to any
Department of Homeland Security detention
official or Department detention facility or
any detention facility authorized to hold
Federal detainees.
(B) Effects of delivery.--Upon surrender of a
principal under subparagraph (A)(iii)--
(i) the official to whom the principal is
surrendered shall detain the principal in
custody and issue a written certificate of
surrender; and
(ii) the Secretary of Homeland Security
shall immediately exonerate the surety from any
further liability on the bond.
(8) Form of bond.--Delivery bonds shall in all cases state
the following and be secured by a corporate surety that is
certified as an acceptable surety on Federal bonds and whose
name appears on the current Treasury Department Circular 570:
``(A) Breach of bond; procedure, forfeiture,
notice.--
``(i) If a principal violates any
conditions of the delivery bond, or the
principal is or becomes subject to a final
administrative order of deportation or removal,
the Secretary of Homeland Security shall--
``(I) immediately issue a warrant
for the principal's arrest and enter
that arrest warrant into the National
Crime Information Center (NCIC)
computerized information database;
``(II) order the bonding agent and
surety to take the principal into
custody and surrender the principal to
any one of 10 designated Department of
Homeland Security `turn-in' centers
located nationwide in the areas of
greatest need, at any time of day
during 15 months after mailing the
arrest warrant and the order to the
bonding agent and the surety as
required by subclause (III), and
immediately enter that order into the
National Crime Information Center
(NCIC) computerized information
database; and
``(III) mail 2 certified copies
each of the arrest warrant issued
pursuant to subclause (I) and 2
certified copies each of the order
issued pursuant to subclause (II) to
only the bonding agent and surety via
certified mail return receipt to their
last known addresses.
``(ii) Bonding agents and sureties shall
immediately notify the Secretary of Homeland
Security of their changes of address and/or
telephone numbers.
``(iii) The Secretary of Homeland Security
shall establish, disseminate to bonding agents
and sureties, and maintain on a current basis a
secure nationwide toll-free list of telephone
numbers of Department of Homeland Security
officials, including the names of such
officials, that bonding agents, sureties, and
their employees may immediately contact at any
time to discuss and resolve any issue regarding
any principal or bond, to be known as `Points
of Contact'.
``(iv) A bonding agent or surety shall have
full and complete access, free of charge, to
any and all information, electronic or
otherwise, in the care, custody, and control of
the United States Government or any State or
local government or any subsidiary or police
agency thereof regarding the principal that may
be helpful in complying with section 105 of the
REAL ID Act of 2005 that the Secretary of
Homeland Security, by regulations subject to
approval by Congress, determines may be helpful
in locating or surrendering the principal.
Beyond the principal, a bonding agent or surety
shall not be required to disclose any
information, including but not limited to the
arrest warrant and order, received from any
governmental source, any person, firm,
corporation, or other entity.
``(v) If the principal is later arrested,
detained, or otherwise located outside the
United States and the outlying possessions of
the United States (as defined in section 101(a)
of the Immigration and Nationality Act), the
Secretary of Homeland Security shall--
``(I) immediately order that the
surety is completely exonerated, and
the bond canceled; and
``(II) if the Secretary of Homeland
Security has issued an order under
clause (i), the surety may request, by
written, properly filed motion,
reinstatement of the bond. This
subclause may not be construed to
prevent the Secretary of Homeland
Security from revoking or resetting a
bond at a higher amount.
``(vi) The bonding agent or surety must--
``(I) during the 15 months after
the date the arrest warrant and order
were mailed pursuant to clause (i)(III)
surrender the principal one time; or
``(II)(aa) provide reasonable
evidence that producing the principal
was prevented--
``(aaa) by the principal's
illness or death;
``(bbb) because the
principal is detained in
custody in any city, State,
country, or any political
subdivision thereof;
``(ccc) because the
principal has left the United
States or its outlying
possessions (as defined in
section 101(a) of the
Immigration and Nationality Act
(8 U.S.C. 1101(a)); or
``(ddd) because required
notice was not given to the
bonding agent or surety; and
``(bb) establish by affidavit that
the inability to produce the principal
was not with the consent or connivance
of the bonding agent or surety.
``(vii) If compliance occurs more than 15
months but no more than 18 months after the
mailing of the arrest warrant and order to the
bonding agent and the surety required under
clause (i)(III), an amount equal to 25 percent
of the face amount of the bond shall be
assessed as a penalty against the surety.
``(viii) If compliance occurs more than 18
months but no more than 21 months after the
mailing of the arrest warrant and order to the
bonding agent and the surety required under
clause (i)(III), an amount equal to 50 percent
of the face amount of the bond shall be
assessed as a penalty against the surety.
``(ix) If compliance occurs more than 21
months but no more than 24 months after the
mailing of the arrest warrant and order to the
bonding agent and the surety required under
clause (i)(III), an amount equal to 75 percent
of the face amount of the bond shall be
assessed as a penalty against the surety.
``(x) If compliance occurs 24 months or
more after the mailing of the arrest warrant
and order to the bonding agent and the surety
required under clause (i)(III), an amount equal
to 100 percent of the face amount of the bond
shall be assessed as a penalty against the
surety.
``(xi) If any surety surrenders any
principal to the Secretary of Homeland Security
at any time and place after the period for
compliance has passed, the Secretary of
Homeland Security shall cause to be issued to
that surety an amount equal to 50 percent of
the face amount of the bond: Provided, however,
That if that surety owes any penalties on bonds
to the United States, the amount that surety
would otherwise receive shall be offset by and
applied as a credit against the amount of
penalties on bonds it owes the United States,
and then that surety shall receive the
remainder of the amount to which it is entitled
under this subparagraph, if any.
``(xii) All penalties assessed against a
surety on a bond, if any, shall be paid by the
surety no more than 27 months after the mailing
of the arrest warrant and order to the bonding
agent and the surety required under clause
(i)(III).
``(B) The Secretary of Homeland Security may waive
penalties or extend the period for payment or both,
if--
``(i) a written request is filed with the
Secretary of Homeland Security; and
``(ii) the bonding agent or surety provides
an affidavit that diligent efforts were made to
effect compliance of the principal.
``(C) Compliance; exoneration; limitation of
liability.--
``(i) Compliance.--A bonding agent or
surety shall have the absolute right to locate,
apprehend, arrest, detain, and surrender any
principal, wherever he or she may be found, who
violates any of the terms and conditions of his
or her bond.
``(ii) Exoneration.--Upon satisfying any of
the requirements of the bond, the surety shall
be completely exonerated.
``(iii) Limitation of liability.--
Notwithstanding any other provision of law, the
total liability on any surety undertaking shall
not exceed the face amount of the bond.''.
(c) Effective Date.--The provisions of this section shall take
effect on the date of the enactment of this Act and shall apply to
bonds and surety undertakings executed before, on, or after the date of
the enactment of this Act.
SEC. 107. RELEASE OF ALIENS IN REMOVAL PROCEEDINGS.
(a) In General.--Section 236(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1226(a)(2)) is amended to read as follows:
``(2) subject to such reasonable regulations as the
Secretary of Homeland Security may prescribe, shall permit
agents, servants, and employees of corporate sureties to visit
in person with individuals detained by the Secretary of and,
subject to section 241(a)(8), may release the alien on a
delivery bond of at least $10,000, with security approved by
the Secretary, and containing conditions and procedures
prescribed by section 105 of the REAL ID Act of 2005 and by the
Secretary, but the Secretary shall not release the alien on or
to his own recognizance unless an order of an immigration judge
expressly finds and states in a signed order to release the
alien to his own recognizance that the alien is not a flight
risk and is not a threat to the United States''.
(b) Repeal.--Section 286(r) of the Immigration and Nationality Act
(8 U.S.C. 1356(r)) is repealed.
(c) Effective Date.--The amendment made by subsection (a) shall
take effect on the date of the enactment of this Act.
SEC. 108. DETENTION OF ALIENS DELIVERED BY BONDSMEN.
(a) In General.--Section 241(a) of the Immigration and Nationality
Act (8 U.S.C. 1231(a)) is amended by adding at the end the following:
``(8) Effect of production of alien by bondsman.--
Notwithstanding any other provision of law, the Secretary of
Homeland Security shall take into custody any alien subject to
a final order of removal, and cancel any bond previously posted
for the alien, if the alien is produced within the prescribed
time limit by the obligor on the bond whether or not the
Department of Homeland Security accepts custody of the alien.
The obligor on the bond shall be deemed to have substantially
performed all conditions imposed by the terms of the bond, and
shall be released from liability on the bond, if the alien is
produced within such time limit.''.
(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
all immigration bonds posted before, on, or after such date.
TITLE II--IMPROVED SECURITY FOR DRIVERS' LICENSES AND PERSONAL
IDENTIFICATION CARDS
SEC. 201. DEFINITIONS.
In this title, the following definitions apply:
(1) Driver's license.--The term ``driver's license'' means
a motor vehicle operator's license, as defined in section 30301
of title 49, United States Code.
(2) Identification card.--The term ``identification card''
means a personal identification card, as defined in section
1028(d) of title 18, United States Code, issued by a State.
(3) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(4) State.--The term ``State'' means a State of the United
States, the District of Columbia, Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Northern Mariana Islands,
the Trust Territory of the Pacific Islands, and any other
territory or possession of the United States.
SEC. 202. MINIMUM DOCUMENT REQUIREMENTS AND ISSUANCE STANDARDS FOR
FEDERAL RECOGNITION.
(a) Minimum Standards for Federal Use.--
(1) In general.--Beginning 3 years after the date of the
enactment of this Act, a Federal agency may not accept, for any
official purpose, a driver's license or identification card
issued by a State to any person unless the State is meeting the
requirements of this section.
(2) State certifications.--The Secretary shall determine
whether a State is meeting the requirements of this section
based on certifications made by the State to the Secretary of
Transportation. Such certifications shall be made at such times
and in such manner as the Secretary of Transportation, in
consultation with the Secretary of Homeland Security, may
prescribe by regulation.
(b) Minimum Document Requirements.--To meet the requirements of
this section, a State shall include, at a minimum, the following
information and features on each driver's license and identification
card issued to a person by the State:
(1) The person's full legal name.
(2) The person's date of birth.
(3) The person's gender.
(4) The person's driver's license or identification card
number.
(5) A digital photograph of the person.
(6) The person's address of principle residence.
(7) The person's signature.
(8) Physical security features designed to prevent
tampering, counterfeiting, or duplication of the document for
fraudulent purposes.
(9) A common machine-readable technology, with defined
minimum data elements.
(c) Minimum Issuance Standards.--
(1) In general.--To meet the requirements of this section,
a State shall require, at a minimum, presentation and
verification of the following information before issuing a
driver's license or identification card to a person:
(A) A photo identity document, except that a non-
photo identity document is acceptable if it includes
both the person's full legal name and date of birth.
(B) Documentation showing the person's date of
birth.
(C) Proof of the person's social security account
number or verification that the person is not eligible
for a social security account number.
(D) Documentation showing the person's name and
address of principal residence.
(2) Special requirements.--
(A) In general.--To meet the requirements of this
section, a State shall comply with the minimum
standards of this paragraph.
(B) Evidence of lawful status.--A State shall
require, before issuing a driver's license or
identification card to a person, valid documentary
evidence that the person--
(i) is a citizen of the United States;
(ii) is an alien lawfully admitted for
permanent or temporary residence in the United
States;
(iii) has conditional permanent resident
status in the United States;
(iv) has an approved application for asylum
in the United States or has entered into the
United States in refugee status;
(v) has a valid, unexpired nonimmigrant
visa or nonimmigrant visa status for entry into
the United States;
(vi) has a pending application for asylum
in the United States;
(vii) has a pending or approved application
for temporary protected status in the United
States;
(viii) has approved deferred action status;
or
(ix) has a pending application for
adjustment of status to that of an alien
lawfully admitted for permanent residence in
the United States or conditional permanent
resident status in the United States.
(C) Temporary drivers' licenses and identification
cards.--
(i) In general.--If a person presents
evidence under any of clauses (v) through (ix)
of subparagraph (B), the State may only issue a
temporary driver's license or temporary
identification card to the person.
(ii) Expiration date.--A temporary driver's
license or temporary identification card issued
pursuant to this subparagraph shall be valid
only during the period of time of the
applicant's authorized stay in the United
States or, if there is no definite end to the
period of authorized stay, a period of one
year.
(iii) Display of expiration date.--A
temporary driver's license or temporary
identification card issued pursuant to this
subparagraph shall clearly indicate that it is
temporary and shall state the date on which it
expires.
(iv) Renewal.--A temporary driver's license
or temporary identification card issued
pursuant to this subparagraph may be renewed
only upon presentation of valid documentary
evidence that the status by which the applicant
qualified for the temporary driver's license or
temporary identification card has been extended
by the Secretary of Homeland Security.
(3) Verification of documents.--To meet the requirements of
this section, a State shall implement the following procedures:
(A) Before issuing a driver's license or
identification card to a person, the State shall
verify, with the issuing agency, the issuance,
validity, and completeness of each document required to
be presented by the person under paragraph (1) or (2).
(B) The State shall not accept any foreign
document, other than an official passport, to satisfy a
requirement of paragraph (1) or (2).
(C) Not later than September 11, 2005, the State
shall enter into a memorandum of understanding with the
Secretary of Homeland Security to routinely utilize the
automated system known as Systematic Alien Verification
for Entitlements, as provided for by section 404 of the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (110 Stat. 3009-664), to verify the legal
presence status of a person, other than a United States
citizen, applying for a driver's license or
identification card.
(d) Other Requirements.--To meet the requirements of this section,
a State shall adopt the following practices in the issuance of drivers'
licenses and identification cards:
(1) Employ technology to capture digital images of identity
source documents so that the images can be retained in
electronic storage in a transferable format.
(2) Retain paper copies of source documents for a minimum
of 7 years or images of source documents presented for a
minimum of 10 years.
(3) Subject each person applying for a driver's license or
identification card to mandatory facial image capture.
(4) Establish an effective procedure to confirm or verify a
renewing applicant's information.
(5) Confirm with the Social Security Administration a
social security account number presented by a person using the
full social security account number. In the event that a social
security account number is already registered to or associated
with another person to which any State has issued a driver's
license or identification card, the State shall resolve the
discrepancy and take appropriate action.
(6) Refuse to issue a driver's license or identification
card to a person holding a driver's license issued by another
State without confirmation that the person is terminating or
has terminated the driver's license.
(7) Ensure the physical security of locations where
drivers' licenses and identification cards are produced and the
security of document materials and papers from which drivers'
licenses and identification cards are produced.
(8) Subject all persons authorized to manufacture or
produce drivers' licenses and identification cards to
appropriate security clearance requirements.
(9) Establish fraudulent document recognition training
programs for appropriate employees engaged in the issuance of
drivers' licenses and identification cards.
(10) Limit the period of validity of all driver's licenses
and identification cards that are not temporary to a period
that does not exceed 8 years.
SEC. 203. LINKING OF DATABASES.
(a) In General.--To be eligible to receive any grant or other type
of financial assistance made available under this title, a State shall
participate in the interstate compact regarding sharing of driver
license data, known as the ``Driver License Agreement'', in order to
provide electronic access by a State to information contained in the
motor vehicle databases of all other States.
(b) Requirements for Information.--A State motor vehicle database
shall contain, at a minimum, the following information:
(1) All data fields printed on drivers' licenses and
identification cards issued by the State.
(2) Motor vehicle drivers' histories, including motor
vehicle violations, suspensions, and points on licenses.
SEC. 204. TRAFFICKING IN AUTHENTICATION FEATURES FOR USE IN FALSE
IDENTIFICATION DOCUMENTS.
(a) Criminal Penalty.--Section 1028(a)(8) of title 18, United
States Code, is amended by striking ``false authentication features''
and inserting ``false or actual authentication features''.
(b) Use of False Driver's License at Airports.--
(1) In general.--The Secretary shall enter, into the
appropriate aviation security screening database, appropriate
information regarding any person convicted of using a false
driver's license at an airport (as such term is defined in
section 40102 of title 49, United States Code).
(2) False defined.--In this subsection, the term ``false''
has the same meaning such term has under section 1028(d) of
title 18, United States Code.
SEC. 205. GRANTS TO STATES.
(a) In General.--The Secretary may make grants to a State to assist
the State in conforming to the minimum standards set forth in this
title.
(b) Authorization of Appropriations.--There are authorized to be
appropriated to the Secretary for each of the fiscal years 2005 through
2009 such sums as may be necessary to carry out this title.
SEC. 206. AUTHORITY.
(a) Participation of Secretary of Transportation and States.--All
authority to issue regulations, set standards, and issue grants under
this title shall be carried out by the Secretary, in consultation with
the Secretary of Transportation and the States.
(b) Compliance With Standards.--All authority to certify compliance
with standards under this title shall be carried out by the Secretary
of Transportation, in consultation with the Secretary of Homeland
Security and the States.
(c) Extensions of Deadlines.--The Secretary may grant to a State an
extension of time to meet the requirements of section 202(a)(1) if the
State provides adequate justification for noncompliance.
SEC. 207. REPEAL.
Section 7212 of the Intelligence Reform and Terrorism Prevention
Act of 2004 (Public Law 108-458) is repealed.
SEC. 208. LIMITATION ON STATUTORY CONSTRUCTION.
Nothing in this title shall be construed to affect the authorities
or responsibilities of the Secretary of Transportation or the States
under chapter 303 of title 49, United States Code.
TITLE III--BORDER INFRASTRUCTURE AND TECHNOLOGY INTEGRATION
SEC. 301. VULNERABILITY AND THREAT ASSESSMENT.
(a) Study.--The Under Secretary of Homeland Security for Border and
Transportation Security, in consultation with the Under Secretary of
Homeland Security for Science and Technology and the Under Secretary of
Homeland Security for Information Analysis and Infrastructure
Protection, shall study the technology, equipment, and personnel needed
to address security vulnerabilities within the United States for each
field office of the Bureau of Customs and Border Protection that has
responsibility for any portion of the United States borders with Canada
and Mexico. The Under Secretary shall conduct follow-up studies at
least once every 5 years.
(b) Report to Congress.--The Under Secretary shall submit a report
to Congress on the Under Secretary's findings and conclusions from each
study conducted under subsection (a) together with legislative
recommendations, as appropriate, for addressing any security
vulnerabilities found by the study.
(c) Authorization of Appropriations.--There are authorized to be
appropriated to the Department of Homeland Security Directorate of
Border and Transportation Security such sums as may be necessary for
fiscal years 2006 through 2011 to carry out any such recommendations
from the first study conducted under subsection (a).
SEC. 302. USE OF GROUND SURVEILLANCE TECHNOLOGIES FOR BORDER SECURITY.
(a) Pilot Program.--Not later than 180 days after the date of the
enactment of this Act, the Under Secretary of Homeland Security for
Science and Technology, in consultation with the Under Secretary of
Homeland Security for Border and Transportation Security, the Under
Secretary of Homeland Security for Information Analysis and
Infrastructure Protection, and the Secretary of Defense, shall develop
a pilot program to utilize, or increase the utilization of, ground
surveillance technologies to enhance the border security of the United
States. In developing the program, the Under Secretary shall--
(1) consider various current and proposed ground
surveillance technologies that could be utilized to enhance the
border security of the United States;
(2) assess the threats to the border security of the United
States that could be addressed by the utilization of such
technologies; and
(3) assess the feasibility and advisability of utilizing
such technologies to address such threats, including an
assessment of the technologies considered best suited to
address such threats.
(b) Additional Requirements.--
(1) In general.--The pilot program shall include the
utilization of a variety of ground surveillance technologies in
a variety of topographies and areas (including both populated
and unpopulated areas) on both the northern and southern
borders of the United States in order to evaluate, for a range
of circumstances--
(A) the significance of previous experiences with
such technologies in homeland security or critical
infrastructure protection for the utilization of such
technologies for border security;
(B) the cost, utility, and effectiveness of such
technologies for border security; and
(C) liability, safety, and privacy concerns
relating to the utilization of such technologies for
border security.
(2) Technologies.--The ground surveillance technologies
utilized in the pilot program shall include the following:
(A) Video camera technology.
(B) Sensor technology.
(C) Motion detection technology.
(c) Implementation.--The Under Secretary of Homeland Security for
Border and Transportation Security shall implement the pilot program
developed under this section.
(d) Report.--Not later than 1 year after implementing the pilot
program under subsection (a), the Under Secretary shall submit a report
on the program to the Senate Committee on Commerce, Science, and
Transportation, the House of Representatives Committee on Science, the
House of Representatives Committee on Homeland Security, and the House
of Representatives Committee on the Judiciary. The Under Secretary
shall include in the report a description of the program together with
such recommendations as the Under Secretary finds appropriate,
including recommendations for terminating the program, making the
program permanent, or enhancing the program.
SEC. 303. ENHANCEMENT OF COMMUNICATIONS INTEGRATION AND INFORMATION
SHARING ON BORDER SECURITY.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Homeland Security, acting
through the Under Secretary of Homeland Security for Border and
Transportation Security, in consultation with the Under Secretary of
Homeland Security for Science and Technology, the Under Secretary of
Homeland Security for Information Analysis and Infrastructure
Protection, the Assistant Secretary of Commerce for Communications and
Information, and other appropriate Federal, State, local, and tribal
agencies, shall develop and implement a plan--
(1) to improve the communications systems of the
departments and agencies of the Federal Government in order to
facilitate the integration of communications among the
departments and agencies of the Federal Government and State,
local government agencies, and Indian tribal agencies on
matters relating to border security; and
(2) to enhance information sharing among the departments
and agencies of the Federal Government, State and local
government agencies, and Indian tribal agencies on such
matters.
(b) Report.--Not later than 1 year after implementing the plan
under subsection (a), the Secretary shall submit a copy of the plan and
a report on the plan, including any recommendations the Secretary finds
appropriate, to the Senate Committee on Commerce, Science, and
Transportation, the House of Representatives Committee on Science, the
House of Representatives Committee on Homeland Security, and the House
of Representatives Committee on the Judiciary.
Passed the House of Representatives February 10, 2005.
Attest:
JEFF TRANDAHL,
Clerk.