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109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                            109-345, Part I

======================================================================



 
 BORDER PROTECTION, ANTITERRORISM, AND ILLEGAL IMMIGRATION CONTROL ACT 
                                OF 2005

                                _______
                                

               December 13, 2005.--Ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                        [To accompany H.R. 4437]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 4437) to amend the Immigration and Nationality Act to 
strengthen enforcement of the immigration laws, to enhance 
border security, and for other purposes, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................    44
Background and Need for the Legislation..........................    45
Hearings.........................................................    46
Committee Consideration..........................................    46
Vote of the Committee............................................    46
Committee Oversight Findings.....................................    49
New Budget Authority and Tax Expenditures........................    49
Congressional Budget Office Cost Estimate........................    49
Performance Goals and Objectives.................................    57
Constitutional Authority Statement...............................    58
Section-by-Section Analysis and Discussion.......................    58
Changes in Existing Law Made by the Bill, as Reported............    78
Committee Jurisdiction Letters...................................   141
Markup Transcript................................................   146
Additional Views.................................................   457
Dissenting Views.................................................   459

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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.

                          Purpose and Summary

    The purpose of H.R. 4437, the ``Border Protection, 
Antiterrorism, and Illegal Immigration Control Act of 2005,'' 
is to ensure the proper enforcement of the current immigration 
laws, create additional mechanisms to prevent illegal 
immigration, assist in the prohibition of hiring illegal 
immigrants, and to enhance border security.

                Background and Need for the Legislation

    The number of resident illegal aliens in the United States 
is estimated to be about 11 million,\1\ and approximately 
500,000 illegal aliens enter the country unlawfully each 
year.\2\ The United States has experienced a drastic increase 
in crime committed by illegal aliens, particularly by illegal 
aliens that are members of criminal gangs. These criminal alien 
gangs are becoming increasingly prevalent throughout the 
country.\3\ This disturbing trend is evidenced by the growing 
number of Federal inmates who are non-citizens, which is 
rapidly approaching 25 percent of the prison population.\4\
---------------------------------------------------------------------------
    \1\ See Steven Camarota, Immigrants at Mid-Decade: A Snapshot of 
America's Foreign-Born Population in 2005, 2005 Center for Immigration 
Studies 23 (nearly 11 million in March 2005); Jeffrey Passel, Estimates 
of the Size and Characteristics of the Undocumented Population, 2005 
Pew Hispanic Center 1 (10.3 million in March 2004, estimate of nearly 
11 million in March 2005).
    \2\ See Immigrants at Mid-Decade at 4 (the total resident illegal 
alien population increased by about 2.5 to 2.7 million between March 
2000 and March 2005; new illegal alien arrivals comprised 3.6 to 3.8 
million persons).
    \3\ See, e.g., Immigration and the Alien Gang Epidemic: Problems 
and Solutions: Hearing Before the Subcomm. on Immigration, Border 
Security and Claims of the House Comm. on the Judiciary, 109th Cong. 
(2005); Heather MacDonald, The Immigrant Gang Plague, the City Journal, 
Summer 2004; Heather MacDonald, The Illegal-Alien Crime Wave, The City 
Journal, Winter 2004.
    \4\ See Paige Harrison and Jennifer Karberg, Prison and Jail 
Inmates at Midyear 2003, Bureau of Justice Statistics Bulletin at 5 
(May 2004)(23.5 percent of all Federal inmates were noncitizens as of 
June 30, 2003).
---------------------------------------------------------------------------
    Despite the enactment of the Immigration Reform and Control 
Act of 1986,\5\ which made it unlawful for an employer to 
knowingly employ illegal aliens and established an employment 
eligibility verification system for new hires, illegal aliens 
comprise a significant portion of the employed population. 
Estimates of the number of illegal immigrants employed in 
various industries include: 17 percent of workers in building 
cleaning and maintenance occupations; 14 percent of private 
household workers; 13 percent of accommodation industry 
workers; 13 percent of food manufacturing industry workers; 12 
percent of the workers in construction and extractive 
occupations (and 10 percent of workers in the construction 
industry); 11 percent of workers in food preparation and 
serving occupations (and 10 percent of workers in the food 
service industry); 8 percent of workers in production 
occupations (and 6 percent of workers in the manufacturing 
industry); and 4.3 percent of workers in the overall 
workforce.\6\
---------------------------------------------------------------------------
    \5\ Pub. L. No. 99-603.
    \6\ See Jeffrey Passel, Unauthorized Migrants: Numbers and 
Characteristics, 2005 Pew Hispanic Center 27, 29 (2004 figures).
---------------------------------------------------------------------------
    The presence of large numbers of illegal aliens in the 
United States demonstrates that America's immigration laws are 
not being effectively enforced. A contributing factor to this 
lack of enforcement has been deficient resources. Congress 
responded to this inadequacy by including provisions in the 
Intelligence Reform and Terrorism Prevention Act of 2004 \7\ 
that authorized over a 5-year period an additional 10,000 
Border Patrol agents, an increase of 40,000 immigration 
detention beds, and an additional 4,000 immigration 
investigators. Another factor that has contributed to the large 
number of illegal aliens within the United States is a lack of 
strong enforcement priorities by current and past 
administrations.\8\ In addition, the incoherent organizational 
structure of immigration enforcement offices within the 
Department of Homeland Security has played a role in the lack 
of enforcement.\9\ Despite the great strides over the last 
decade that resulted from the enactment of legislation such as 
the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996,\10\ and the REAL ID Act of 2005,\11\ significant 
changes to current immigration law are necessary to restore 
accountability for those who violate immigration laws, ensure 
the prevention of future illegal immigration, and to combat the 
rising prevalence of criminal behavior by illegal aliens. The 
``Border Protection, Antiterrorism, and Illegal Immigration 
Control Act of 2005'' contains measures that address these 
important concerns.
---------------------------------------------------------------------------
    \7\ Pub. L. No. 108-458.
    \8\ Enforcement of ``employer sanctions,'' while always spotty, 
declined in the latter years of the Clinton Administration after a 1999 
interior enforcement strategy delegated it to the lowest rung of 
priority. Enforcement has since plummeted still further. The total 
hours worked by investigators on employer sanctions cases fell from 
almost 714,000 in 1997 to 135,000 in 2004, a drop of 81 percent. The 
number of notices of intent to fine employers for violations fell from 
1461 in 1992 to 3 in 2004, a drop of 99 percent. The number of arrests 
of illegal alien employees fell from 17,552 in 1997 to 445 in 2003, a 
drop of 97 percent. See Lack of Worksite Enforcement and Employer 
Sanctions: Hearing Before the Subcomm. on Immigration, Border Security 
and Claims of the House Comm. on the Judiciary, 109th Cong. (2005).
    \9\ In the Homeland Security Act of 2002, Congress created a Bureau 
of Border Security that was to carry out the five immigration 
enforcement functions--the Border Patrol, detention and removal, 
intelligence, investigations, and inspections at ports-of-entry--and 
not suffer from the INS's mission overload. See sections 441 and 442 of 
Pub. Law. No. 107-296. When the Department of Homeland Security was 
created, however, immigration functions were split into border-related 
functions to be carried out by the Bureau of Customs and Border 
Protections and interior-related functions to be carried out by the 
Bureau of Immigration and Customs Enforcement. In addition, each of 
these two agencies was also burdened with carrying out customs law 
enforcement and other responsibilities. The result has been devastating 
for immigration enforcement. Most leadership positions, both in 
Washington and in local offices, were given to legacy Customs Bureau 
officials, and, not surprisingly, immigration enforcement has been 
relegated to the lowest rung of priority and has been deprived of 
requisite resources and organizational unity. Dedicated and experienced 
immigration enforcement professionals have left in droves. See New 
``Dual Missions'' of the Immigration Enforcement Agencies: Hearing 
Before the Subcomm. on Immigration, Border Security and Claims of the 
House Comm. on the Judiciary, 109th Cong. (2005).
    \10\ Division C of title III of Pub. L. No. 104-208.
    \11\ Division B of Pub. L. No. 109-13.
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
4437.

                        Committee Consideration

    On December 8, 2005, the Committee met in open session and 
ordered favorably reported the bill H.R. 4437 with an amendment 
by a recorded vote of 23-15, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee sets forth the 
following rollcall votes that occurred during the Committee's 
consideration of H.R. 4437:
    1. Rollcall number one was an amendment offered by Rep. 
Scott (VA) to strike the mandatory minimum sentences contained 
in the bill. This amendment was not agreed to by a rollcall 
vote of 12 ayes to 20 nays.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Van Hollen..................................................              X
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             12              20
----------------------------------------------------------------------------------------------------------------

    2. Rollcall number two was an amendment offered by Rep. 
Berman to create an H-5A ``essential worker'' temporary work 
visa program, to create an H-5B temporary work visa program for 
aliens unlawfully present and employed in the United States on 
the date of enactment, and to provide for the adjustment of 
status to permanent residence for such aliens upon the meeting 
of certain conditions. This amendment was not agreed to by a 
rollcall vote of 13 ayes to 22 nays and one member voting 
present.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................              X
Mr. Wexler......................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Van Hollen..................................................              X
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             13              22               1
----------------------------------------------------------------------------------------------------------------

    3. Rollcall number three was a vote on final passage of the 
bill as amended. The bill was reported favorably, as amended, 
by a rollcall vote of 23 ayes to 15 nays.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Lungren.....................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Inglis......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Van Hollen..................................................                              X
Ms. Wasserman Schultz...........................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             23              15
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because the provisions of this 
legislation within the jurisdiction of the Judiciary Committee 
do not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 4437, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, December 13, 2005.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
completed the enclosed cost estimate for H.R. 4437, the Border 
Protection, Antiterrorism, and Illegal Immigration Control Act 
of 2005.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 4437--Border Protection, Antiterrorism, and Illegal Immigration 
        Control Act of 2005.

                                SUMMARY

    H.R. 4437 would direct the Department of Homeland Security 
(DHS) and the Social Security Administration (SSA) to extend 
and expand a system to verify the eligibility of certain people 
for employment in the United States. The bill also would 
require DHS to reimburse counties along the southern U.S. 
border for costs relating to the detention of illegal aliens, 
increase the number of border inspection personnel, deploy 
radiation portal monitors at ports of entry, and establish an 
Office of Air and Marine Operations within DHS. The bill would 
establish mandatory minimum prison sentences for a number of 
offenses relating to illegal entry into the United States and 
would establish civil and criminal penalties for such crimes. 
Finally, H.R. 4437 would make many other amendments to current 
law and changes to existing DHS procedures that aim to increase 
the security of U.S. borders.
    CBO estimates that implementing H.R. 4437 would cost about 
$1.9 billion over the 2006-2010 period, assuming appropriation 
of the necessary amounts. Such costs would continue and grow 
significantly after 2010 as additional requirements of the bill 
would be implemented. Enacting the bill could affect direct 
spending and revenues, but we estimate that any such effects 
would not be significant.
    H.R. 4437 would impose intergovernmental and private-sector 
mandates, as defined in the Unfunded Mandates Reform Act 
(UMRA), on employers and other entities that hire, recruit, or 
refer individuals for employment. CBO expects that the 
aggregate direct costs to comply with those mandates would 
exceed the annual threshold for both intergovernmental and 
private-sector mandates ($62 million for intergovernmental 
mandates in 2005 and $123 million for private-sector mandates 
in 2005, adjusted annually for inflation) in at least one of 
the first five years the bill is in effect.
    Other provisions of the bill contain no intergovernmental 
or private-sector mandates; some would benefit local 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 4437 is shown in the 
following table. The cost of this legislation falls within 
budget functions 650 (Social Security) and 750 (administration 
of justice).




                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that the bill will be 
enacted near the start of calendar year 2006 and that the 
amounts necessary to implement the bill will be appropriated 
for each year. CBO estimates that implementing H.R. 4437 would 
cost about $1.9 billion over the 2006-2010 period, assuming 
appropriation of the necessary funds. Enacting the bill also 
could affect direct spending and revenues, but we estimate that 
any such effects would not be significant.
Spending Subject to Appropriation
    We assume that the necessary amounts will be appropriated 
by the start of each fiscal year after 2006, that supplemental 
appropriations will be provided early in calendar year 2006 for 
initial program needs, and that spending will follow the 
historical spending patterns for these or similar activities.
    Employment Eligibility Verification System. H.R. 4437 would 
direct DHS, within two years of the bill's enactment, to extend 
and expand a system to verify the eligibility of persons for 
employment in the United States. CBO estimates that this would 
cost about $405 million over the 2006-2010 period, including 
$185 million for DHS, $200 million for SSA, and $20 million for 
other Federal agencies.
    Requirements of H.R. 4437. DHS and SSA currently operate an 
employment eligibility verification system known as the basic 
pilot. This system is available to employers nationwide, but 
its use is voluntary and is restricted to checking the status 
of new hires. All inquiries to that system are handled through 
the Internet, and the pilot program expires in late 2008. H.R. 
4437 would require DHS to set up a toll-free telephone line or 
other toll-free electronic media to respond within three 
working days to inquiries from employers seeking verification 
of employment eligibility and would require the department to 
maintain records of all inquiries and responses.
    The bill would require all employers to use the new system 
for newly hired employees upon its establishment. Within three 
years of the bill's enactment (in 2009), Federal, State, and 
local governments, as well as certain other private employers, 
would have to use the system to check the eligibility of all of 
their employees (i.e., both new hires and the existing 
workforce). Within six years of enactment (in 2012), all other 
employers would have to do so for all of their workforces.
    Number of Inquiries Expected. According to the Bureau of 
Labor Statistics (BLS), new hires at nonfarm establishments 
average about 4.6 million each month, or about 50 million to 55 
million at an annual rate. (That does not mean that 50 million 
people change jobs every year because some people change jobs 
several times in a year. Nevertheless, each new hire would--
after mid-2008--go through the employment verification system 
proposed in H.R. 4437.) The annual volume of new hires will 
equal about 55 million to 60 million in 2008 through 2015, CBO 
assumes. Employees of Federal, State, and local governments and 
certain other sectors--chiefly, nongovernment employees who 
work at Government installations, airports, nuclear power 
facilities, and ``critical infrastructure'' facilities--would 
become subject to verification in 2009; CBO estimates that 
would be about 25 million people. Finally, all other employees 
would become subject to verification under the bill in 2012, 
six years after enactment. CBO estimates that about 120 million 
employees would need to have their eligibility to work in the 
U.S. verified by 2012, although many of those people would have 
been newly hired after 2008 and would thus represent repeat 
cases. Those figures represent lower-bound estimates of the 
total volume of verifications because the BLS data on which 
they are based omit agricultural employment.
    Costs to DHS. Under the bill, DHS would have primary 
responsibility for establishing and maintaining the system. 
Based on information from DHS, CBO estimates that it would cost 
the department about $100 million over the 2006-2008 period for 
upgrades to the basic pilot system to handle the huge increase 
in inquiries that would result from H.R. 4437. This one-time 
cost would include enhancements of software, hardware, 
databases, and other technological components of the new 
employment eligibility system.
    In addition, DHS would have to hire personnel to respond to 
inquiries within three working days (as required by the bill), 
staff the toll-free telephone line, and maintain records of the 
inquiries and responses. Based on information from DHS, CBO 
expects that staff would be hired during 2008 and costs would 
reach $35 million annually, beginning in fiscal year 2009. 
Under the bill, the agency's cost to process employment 
verification inquiries would increase substantially after 2010 
when all private employers would be required to check the 
eligibility of their entire workforce by 2012.
    Costs to SSA. The SSA's responsibilities under the bill 
would include providing DHS with continued, secure access to 
its database of Social Security numbers and handling phone 
inquiries, personal visits, and requests for replacement cards 
from people seeking to clear a ``nonverified'' response to 
their current or prospective employer. Based on information 
from the agency, CBO estimates SSA's costs at $9 million in 
2006, about $200 million over the 2006-2010 period, and about 
$640 million over the 2006-2015 period. Under the bill, the 
agency's cost to process employment verification inquiries 
would increase substantially after 2010 when all private 
employers would be required to check the eligibility of their 
entire workforce by 2012.
    Costs to Other Federal Agencies. Finally, Federal agencies 
themselves would be among the employers required to verify the 
legal status of their workforce in 2009, three years after the 
bill's enactment. There are slightly over 4 million Federal 
Government employees, including military personnel on active 
duty. CBO assumes that it would cost agencies an average of $4 
per employee to comply with the verification requirement. (The 
requirement would apply even if agencies had previously 
performed a security clearance or other exhaustive check.) That 
cost, incurred by agencies' personnel offices, consists of 
assembling the data for initial submission and following up the 
relatively few, but labor-intensive, cases that the automated 
system would initially fail to match. CBO estimates that 
Federal agencies would spend approximately $18 million in 2009 
to submit their employees' basic data to the DHS system and to 
reconcile the new cases that would be returned as 
``nonverifiable.'' The Federal Government would also spend an 
estimated $1 million annually to verify its new hires through 
the automated system.
    Payments to Counties Along Southern U.S. Border. H.R. 4437 
would direct DHS to reimburse counties within 25 miles of the 
southern U.S. border for the costs of detaining, housing, and 
transporting illegal aliens. The bill would authorize funding 
of up to $100 million annually for such reimbursements. Based 
on the costs reported by these counties in recent years for the 
detention and housing of illegal aliens, CBO estimates that 
implementing this provision would cost $100 million for each of 
fiscal years 2007 through 2010.
    Federal Prison System. H.R. 4437 would establish mandatory 
minimum prison sentences for a wide range of offenses involving 
illegal entry into the United States. The U.S. Sentencing 
Commission analyzed the bill's impact on the Federal prison 
population. Based on this analysis, CBO estimates that the 
longer sentences required under the bill would increase the 
prison population by about 7,000 person-years over the 2006-
2010 period. According to the Bureau of Prisons, for an 
increase in the Federal prison population of this magnitude, it 
would spend about $24,000 a year (at 2005 prices) to house each 
additional prisoner. CBO estimates that the cost to support 
those additional prisoners would total $170 million over the 
2006-2010 period.
    In addition, according to the Bureau of Prisons, 
construction of a new prison would be required when the annual 
increase in the prison population exceeds 1,150. Based on the 
anticipated increase in the cumulative prison population over 
the 2006-2010 period, we estimate that this annual threshold 
would be exceeded in 2008 and 2010. Thus, CBO expects two new 
prisons would need to be built to accommodate the additional 
prisoners resulting from enactment of H.R. 4437. We estimate 
that each facility would cost $115 million, construction would 
begin in 2008, and some spending would occur after 2010.
    Additional Port-of-Entry Inspectors and Canine Detection 
Teams. H.R. 4437 would direct DHS to increase the number of 
port-of-entry inspectors by 250 in each of fiscal years 2007 
through 2010. Currently, there are about 19,000 inspectors, so 
this would represent an increase of just over 1 percent 
annually. In addition, for each of fiscal years 2007 through 
2011, the bill would require DHS to increase the number of 
canine detection teams by at least 25 percent over the number 
of such positions for the preceding year. (Currently, there are 
a total of 647 canine detection teams, each consisting of one 
officer and one dog.)
    Based on information from DHS, CBO estimates that it costs 
about $100,000 a year to hire an additional inspector and 
$130,000 a year for each new canine detection team, including 
salaries, benefits, training, and support costs. Assuming that 
each annual cohort required by the bill would be hired over the 
course of a year, we estimate that implementing this provision 
would cost $400 million over the 2007-2010 period, with 
spending split evenly between the inspectors and the canine 
detection teams.
    Radiation Portal Monitors at Ports of Entry. H.R. 4437 
would direct DHS, within one year of the bill's enactment, to 
deploy radiation portal monitors at U.S. ports of entry 
selected by the agency to facilitate the screening of inbound 
cargo for concealed nuclear and radiological material. Based on 
information from DHS, we expect that the agency would implement 
the bill by deploying such monitors at all U.S. ports.
    According to DHS, there are 613 radiation portal monitors 
currently deployed at 110 points of entry in 85 U.S. ports, 
leaving a total of 270 points of entry that lack these devices. 
Because the unmonitored ports generally experience lesser 
volumes of inbound cargo, CBO assumes that remaining points of 
entry would need, on average, four monitors. The radiation 
portal monitors that are currently used cost $280,000 each, but 
a more effective device is now available at a cost of $470,000 
per unit.
    Assuming that the roughly 1,000 additional monitors 
required to implement H.R. 4437 would include approximately 
equal numbers of monitors of each type ($280,000 and $470,000 
models), the costs to deploy the monitors at the remaining 
ports would be about $400 million. However, because $125 
million has already been appropriated for fiscal year 2006 for 
monitors, we estimate that implementing H.R. 4437 would cost 
about $280 million over the 2006-2007 period.
    In addition, we expect that there would be some maintenance 
and replacement costs for those monitors in subsequent years. 
CBO estimates that such costs would probably be no more than 10 
percent of the initial cost of the new monitors, or about $20 
million annually.
    Office of Air and Marine Operations. H.R. 4437 would 
establish an Office of Air and Marine Operations within DHS 
that would be headed by an Assistant Secretary who would report 
directly to the Secretary of Homeland Security. We expect that 
this office would consist of about 1,200 personnel currently in 
the Bureau of Customs and Border Protection who direct and 
carry out aviation and marine operations.
    As a new agency within DHS, the Office of Air and Marine 
Operations would need its own human resources, legal, finance, 
technical support, and other administrative offices. Based on 
the number of support personnel at other Federal agencies that 
employ between 1,000 and 2,000 persons, CBO estimates that it 
would cost about $16 million annually for these functions, 
beginning in fiscal year 2007. This estimated annual cost 
represents about 10 percent of current spending for the 
transferred personnel and assumes that some existing 
administrative staff would be transferred to the new office. In 
addition, we estimate that there would be one-time costs of 
about $4 million to relocate personnel and carry out other 
activities necessary to establish a new agency within DHS.
    Additional Funding for Inspector General. H.R. 4437 would 
authorize the appropriation of sums necessary to increase 
funding above the current level for the DHS Office of the 
Inspector General (IG) by 5 percent for fiscal year 2007, 6 
percent for 2008, and 7 percent for 2009. For fiscal year 2006, 
$83 million was appropriated for the IG. We estimate that 
implementing this provision for increases in IG funding would 
cost $4 million in 2007, $5 million in 2008, and $6 million in 
2009.
    Other Programs. H.R. 4437 would direct DHS to establish a 
university-based Center of Excellence for Border Security. 
Based on spending for similar university programs already 
established by DHS, we estimate that implementing this 
provision would require funding of about $5 million annually, 
beginning in fiscal year 2007.
    In addition, the bill would require DHS and the Government 
Accountability Office to prepare various reports relating to 
improving border security. The bill would also direct SSA to 
study possible enhancements to Social Security cards, such as 
making them of durable plastic and adding a machine-readable 
identification strip and a digital photograph of the holder. 
(An earlier SSA study, published in 1997, estimated total costs 
of $5 billion to $10 billion, depending on the features chosen, 
for replacing the 277 million cards then in circulation.) CBO 
estimates that the costs to prepare these reports would total 
about $2 million.
    Border Patrol in Virgin Islands. H.R. 4312 would direct 
DHS, by September 30, 2006, to establish at least one border 
patrol unit for the U.S. Virgin Islands. However, the 
Department of Homeland Security Appropriations Act, 2006 
(Public Law 109-90) already directs DHS to determine whether or 
not a border patrol unit in the Virgin Islands is necessary 
and, if deemed necessary, to establish such a unit by March 1, 
2006. CBO cannot predict whether this unit will be established 
under Public Law 109-90. Based on information from DHS, 
however, CBO expects that a unit in the Virgin Islands would 
probably cost no more than $1 million annually.
Direct Spending and Receipts
    H.R. 4437 would establish new and increased civil and 
criminal penalties for various crimes involving illegal 
immigration. Thus, the Federal Government might collect 
additional fines if the bill is enacted. Collections of civil 
fines are recorded in the budget as revenues. Criminal fines 
are recorded as revenues, then deposited in the Crime Victims 
Fund and later spent. CBO expects that any additional revenues 
and direct spending would not be significant.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 4437 would impose intergovernmental and private-sector 
mandates, as defined in UMRA, on employers and other entities 
that hire, recruit, or refer individuals for employment. CBO 
expects that the aggregate direct costs to comply with those 
mandates would exceed the annual threshold for both 
intergovernmental and private-sector mandates ($62 million for 
intergovernmental mandates in 2005 and $123 million for 
private-sector mandates in 2005, adjusted annually for 
inflation) in at least one of the first five years the bill is 
in effect.
Verification When Hiring, Recruiting, or Referring Individuals
    The bill would require State and local governments, 
private-sector employers, and other entities that recruit or 
refer employees, to submit names, Social Security numbers, and 
other identifying information of the individuals they hire, 
recruit, or refer to the employee verification system 
administered by DHS. Verification information would have to be 
submitted by the end of three working days after the date of 
hire or before recruiting or referring a potential employee. 
Such employers and entities also would be required to maintain 
a record of the verification for a specific amount of time in a 
form that would be available for Government inspection. The 
bill would require that the mandatory inquiry about employment 
eligibility and recordkeeping for new employees begin two years 
after the date of enactment of this bill.
Verification of Previously Hired Employees
    All Government employers, certain private employers that 
are part of the critical infrastructure of the United States, 
and entities that employ persons in Government buildings, would 
be required within three years after the date of enactment to 
verify the identity and employment eligibility of all 
individuals employed by that entity who have not been 
previously subject to such an inquiry. Other private-sector 
employers would be required within six years after enactment to 
verify the identity and employment eligibility of all 
individuals employed by the entity who have not been previously 
subject to such an inquiry. A record of the verification for 
those previously hired employees also would have to be 
maintained by the employers for a specific amount of time in a 
form that would be available for Government inspection.
    Current law requires employers to attest that they have 
verified that the individual they are hiring, recruiting, or 
referring for employment in the United States is not an 
unauthorized alien by examining certain documents. Some 
employers voluntarily use the employment verification system to 
confirm the name and Social Security number of individuals. 
Requiring all employers and other entities to do such inquiries 
would impose new intergovernmental and private-sector mandates 
on employers. The direct cost of the mandates would be the 
incremental cost to prepare and verify the employment 
eligibility of an individual through a toll-free telephone 
number or Web-based system and to maintain records.
    Based on information from State and local employers and 
representatives from personnel offices, the requirement to 
verify previously hired employees would be costly. Some 
employers with modern personnel systems would need to purchase 
software patches to enable their computer systems to compile 
and transmit the data. Smaller employers would need to manually 
submit the data through a toll-free phone number or Web-based 
system. Because of the large number of entities that would be 
required to prepare and submit information on previously hired 
individuals, however, CBO expects that the aggregate direct 
costs to comply with those mandates would exceed the annual 
threshold for both intergovernmental and private-sector 
mandates in at least one of the first five years the bill is in 
effect.
    This bill would create a new program to reimburse the costs 
incurred by some county sheriffs' offices to detain and 
transport aliens who are not lawfully present in the United 
States. Those governments would benefit from up to $100 million 
annually for this program and any costs would be incurred 
voluntarily as conditions of receiving Federal assistance.

                         PREVIOUS CBO ESTIMATE

    On December 6, 2005, CBO transmitted a cost estimate for 
H.R. 4312, the ``Border Security and Terrorism Prevention Act 
of 2005,'' as ordered reported by the House Committee on 
Homeland Security on November 17, 2005. We estimated that 
implementing that bill would cost $870 million over the 2006-
2010 period, assuming appropriation of the necessary amounts. 
Several of the provisions in H.R. 4437 are identical to 
provisions in H.R. 4312, and CBO's estimates for those 
provisions are unchanged.

                         ESTIMATE PREPARED BY:

Federal Costs:
  DHS and Federal Prisons--Mark Grabowicz (226-2860)
  Social Security Administration--Kathy Ruffing (226-2820)
Impact on State, Local, and Tribal Governments: Melissa Merrell 
    (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2960)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
Rule XIII of the Rules of the House of Representatives, H.R. 
4437 will strengthen enforcement of the immigration laws and 
enhance border security.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in art. 1, Sec. 8, cl. 4 of the Constitution.

               Section-by-Section Analysis and Discussion

    The following section-by-section analysis contains a 
description of principal provisions contained in H.R. 4437 as 
reported within the jurisdiction of the Committee on the 
Judiciary. H.R. 4437 incorporates the border security 
provisions contained in H.R. 4312, which was reported from the 
Committee on Homeland Security on December 6, 2005. For a 
discussion of these border security provisions, please see H.R. 
Rept. 109-329, Part I.
Section 3. Sense of Congress on setting a manageable level of 
        immigration.
    Section 3 provides a sense of Congress that the Nation's 
immigration policy shall be designed to enhance the economic, 
social and cultural well-being of the United States.

                TITLE I--SECURING UNITED STATES BORDERS

Section 104. Biometric data enhancements.
    This section requires that by October 1, 2006, the 
Secretary of the Department of Homeland Security (DHS) enhance 
the connectivity between the Automated Biometric Identification 
System (ABIS) and Integrated Automated Fingerprint 
Identification System (IAFIS) biometric databases and collect 
ten fingerprints from individuals through the United States 
Visitor and Immigrant Status Indicator Technology (US-VISIT) 
program during their initial enrollment.

               TITLE II--COMBATTING ALIEN SMUGGLING AND 
                       ILLEGAL ENTRY AND PRESENCE

Section 201. Definition of aggravated felony.
    This section amends the definition of aggravated felony 
contained in the Immigration and Nationality Act (INA) to 
include all smuggling offenses, illegal entry, and reentry 
crimes with a sentence of a year or more. It also makes the 
aggravated felony definition consistent with Federal criminal 
law by expanding it to include solicitation and assistance in 
specified offenses.
    This section is necessary to combat alien smuggling and 
criminal aliens illegally reentering the United States. The INA 
broadly defines the term ``aggravated felony'' in over 20 sub-
paragraphs. If an alien has been convicted of such an offense, 
the alien will be ineligible for most forms of relief and for 
release from detention. Illegal reentry after such an offense 
will also subject the alien to serious criminal penalties. The 
aggravated felony definition does not effectively deter, 
however, many dangerous aliens from repeatedly reentering the 
United States illegally. Specifically, the definition only 
includes illegal entry and illegal reentry violations of the 
INA in circumstances in which the alien was previously deported 
for having committed another aggravated felony. The current 
definition is unduly restrictive in several respects. First, 
this definition does not reach aliens who previously committed 
various other felonies, even though those felonies may have 
been serious crimes. Second, it does not reach aggravated felon 
aliens who were previously deported, but who were not deported 
on the basis of their aggravated felony convictions. Section 
201 would address this problem by including within the 
definition of aggravated felony a felony illegal entry or 
reentry offense under section 275(a) or section 276 of the INA, 
without regard to whether the alien had been previously 
deported subsequent to conviction of an aggravated felony. 
Given their prior felony immigration convictions, such criminal 
aliens are well aware of the immigration laws. Their decision 
to reenter the United States should warrant the same 
immigration restrictions and a sentence at least equal to those 
who commit non-immigration felony offenses.
    In addition to these changes, section 201 will also make 
all smuggling convictions aggravated felonies with the 
exception of smuggling related to an alien's immediate family. 
Recent experience shows that alien smuggling is flourishing, is 
increasingly violent, and highly profitable.\12\ Alien 
smuggling operations also present terrorist and criminal 
organizations with opportunities to smuggle their members into 
the United States practically at will. This section will impose 
the most serious sanctions under the immigration laws upon 
aliens who engage in alien smuggling.
---------------------------------------------------------------------------
    \12\ See The Deadly Consequences of Illegal Alien Smuggling: 
Hearing of the Subcomm. on Immigration, Border Security and Claims of 
the House Comm. on the Judiciary, 108th Cong. (2003).
---------------------------------------------------------------------------
    Finally, this section makes clear that the definition of 
aggravated felony includes ``soliciting, aiding, abetting, 
counseling, commanding, inducing, procuring'' or a conspiracy 
to commit any of the offenses listed in section 101(a)(43) of 
the INA, by incorporating the aiding and abetting language from 
Federal law. This change is needed to reverse a Ninth Circuit 
precedent that has had the effect of requiring Federal 
prosecutors in criminal cases seeking sentencing enhancements 
to prove that prior convictions were not based on aiding and 
abetting.\13\ This is often impossible to prove, because in 
Federal court, and in almost every State jurisdiction, a 
defendant can be convicted of aiding and abetting a substantive 
offense, even if aiding and abetting is not specifically 
charged in the indictment.
---------------------------------------------------------------------------
    \13\ See U.S. v. Corona-Sanchez , 291 F. 3d 1208 (9th Cir. 2002)(en 
banc).
---------------------------------------------------------------------------
Section 202. Alien smuggling and related offenses.
    This section amends the alien smuggling provisions of the 
INA to include offenses in circumstances in which the offender 
acts in reckless disregard of the fact that the smuggled person 
is an alien not allowed to enter the United States, places 
mandatory minimum sentences on smuggling convictions, and 
facilitates DHS efforts to seize smugglers' property.
    In recent years, more and more illegal aliens are utilizing 
the services of alien smugglers and the cost of their services 
has increased dramatically. Alien smuggling not only 
facilitates illegal immigration, but subjects smuggled aliens 
to inhumane treatment. Migrants are frequently abused or 
exploited, both during their journey and upon reaching the 
United States. There are many recent examples--aliens abandoned 
by their smugglers in the desert, without food or water, and 
aliens who have died or suffered serious injuries when locked 
by smugglers into trucks and cargo containers. Consequently, 
aliens smuggled into the United States are at significant risk 
of physical injury, abuse, and death. In addition, smuggled 
aliens must often pay back their debts through long periods of 
indentured servitude in sweatshop conditions in places like New 
York City's Chinatown, and smugglers often coerce indebted 
aliens into drug trafficking, prostitution, and other illegal 
activities. Aliens who fail to cooperate with smugglers suffer 
severe penalties. The Committee believes that it is vital to 
establish clear penalties to deter and prevent the cruel and 
inhumane trafficking of human beings. Smuggling also poses a 
national security risk, as terrorists and criminals can utilize 
the same smugglers that economic migrants use.
    However, under current law, individuals convicted of alien 
smuggling crimes often receive lenient sentences, which have 
contributed to the upsurge in alien smuggling. Organized crime 
syndicates realize that the risk of punishment for smuggling 
aliens is far less than the risk for smuggling drugs or 
committing other serious crimes. In addition, lenient sentences 
and the lack of serious penalties in current criminal law 
toward alien smuggling may act to dissuade U.S. Attorneys from 
bringing cases.
    Under existing law, the offenses and penalties for 
unlawfully bringing aliens into the United States are set forth 
in two separate provisions, sections 274(a)(1) and 274(a)(2) of 
the INA. For historical reasons, those provisions were 
implemented and developed separately. As a result, the two 
provisions contain inconsistent mens rea elements, and provide 
disparate sentences for identical or substantially similar 
conduct. Accordingly, the successful prosecution of virtually 
identical conduct can lead to different results under current 
law, depending upon whether a violation of section 
274(a)(1)(A)(i) or (a)(2) is charged. Section 202 creates a 
uniform mens rea standard for alien smuggling and related 
offenses, and sets uniform sentences for violations of those 
offenses.
    Unlike current law, the penalties for those charged will be 
based on the factual circumstances of the offense and the 
danger that the smuggling posed to the alien and to the 
community rather than on the code section charged. As a result, 
offenses that were committed for commercial profit will be 
punished more severely than offenses that are not. Offenses 
that are committed to further other criminal acts are subject 
to even more serious mandatory sentences, as are offenses that 
result in injury or death. Consistent with existing law, 
offenses in which death results will be eligible for the death 
penalty. This section will increase the criminal penalties for 
certain alien smuggling offenses and establish mandatory 
minimum sentences for serious and repeat offenders. In 
addition, it increases penalties where the smuggling posed a 
risk to individuals or the Nation.
    This section also expands the scope of the alien smuggling 
statute to reach conduct that is not covered by existing law. 
The section reaches conduct relating to facilitating the 
smuggling of aliens to the United States by persons who 
willfully participate in alien smuggling ventures, but where 
the Government cannot demonstrate beyond a reasonable doubt 
that the smugglers knew the aliens were en route to the United 
States. Rather than forming centralized, tightly controlled 
hierarchies, alien smugglers often favor loose, short- or long-
term associations. These global networks often match smugglers 
who specialize in illegally transporting particular nationals 
or have special knowledge of specific routes. Under existing 
law, however, smugglers who play an integral role in 
facilitating the illegal movement of aliens to the United 
States cannot be prosecuted unless the Government can prove 
that the smuggler knew or recklessly disregarded the fact that 
the aliens intended to travel to the United States. This 
section eliminates this loophole.
    This section will also help to reduce the profits derived 
from alien smuggling. Under existing law, civil forfeiture is 
limited to any conveyance used in smuggling. Section 202 will 
permit civil forfeiture of any property, real or personal, used 
to commit or facilitate the commission of a violation of 
amended subsection (a)(1), the gross proceeds of such 
violation, and property traceable to such property or proceeds. 
This amendment is necessary to deprive smugglers of the 
property they use to coordinate and undertake their smuggling 
operations and to deny them the financial gains they have 
obtained through smuggling.
Section 203. Improper entry by, or presence of, aliens.
    This section makes illegal presence in the United States a 
Federal crime, and expands the penalties for aliens who 
illegally enter the U.S., are present illegally, or are present 
illegally and have been convicted of certain crimes. It also 
expands the penalties for marriage and immigration-related 
entrepreneurship fraud.
    Section 203 is intended to bring section 275 of the INA, 
which criminalizes illegal entry into the United States, into 
harmony with section 276, which prohibits illegal entry after 
removal. Section 276 makes it a crime to be ``found in'' the 
United States after removal. Section 203 of the bill amends 
section 275 to state that it is a crime for an alien to be 
``present in the United States in violation of the immigration 
laws or regulations prescribed thereunder.'' This section 
establishes consistency between section 275 and section 276.
    Section 203 also removes incentives for aliens, having 
entered legally, to remain in the United States in violation of 
the terms of their visa or entry. Currently, ``visa overstay'' 
is not a criminal offense, and, as a practical matter, there 
are often not negative consequences associated with visa 
overstay. This is likely one of the reasons that the overstay 
problem is significant. According to the 2000 Statistical 
Yearbook of the Immigration and Naturalization Service, ``About 
2.1 million, or 41 percent, of the total undocumented 
population in 1996 [were] non-immigrant overstays. That is, 
they entered legally on a temporary basis and failed to 
depart.'' Because overstaying a visa is not currently a 
criminal offense, in many cases an alien is no worse off for 
having remained in the United States past the expiration of an 
authorized stay than they would have been had they departed on 
time. On the contrary, in some cases aliens have sought relief 
based on factors that develop during the time they were out of 
status. In making overstaying a visa a Federal crime, section 
203 will encourage aliens to depart at the end of their 
authorized stay. This penalty will increase respect for the 
immigration system by deterring aliens who remain in the United 
States out of the mistaken belief that their visa overstay is 
merely a technical violation. It will also ensure that illegal 
aliens do not labor under the impression that simply eluding 
authorities for long enough will provide relief from 
deportation based on acquired equities.
    Section 203 also contains sentence enhancements for illegal 
alien criminal offenders who remain in the United States after 
conviction. This will protect the American people by 
encouraging serious criminal illegal aliens to leave the United 
States after imprisonment. Such self-deportation is more 
effective, and cost-effective, than removal by the Government.
    Finally, this section increases the penalties for marriage 
and immigration-related entrepreneurship fraud. Enhanced 
penalties are necessary to deter an increasing level of 
immigration fraud, particularly by criminal organizations that 
utilize, promote, or derive financial benefit from immigration 
fraud. Increasing the maximum sentences under these subsections 
will serve to deter and punish organizations and individuals 
who engage in these crimes.
Section 204. Reentry of removed aliens.
    This section, based on Representative Darrell Issa's 
``Criminal Alien Accountability Act'' (H.R. 3150), sets 
mandatory minimum sentences for aliens convicted of reentry 
after removal. Section 276 of the INA criminalizes attempted or 
successful entry into the United States by illegal aliens who 
have been previously excluded, deported, removed, or denied 
admission. Unfortunately, this provision has proven ineffective 
at deterring the reentry of aliens after removal from the 
United States. As a result of this frequent abuse, United 
States Attorneys Offices have set thresholds for the number of 
reentries aliens must commit before they will be prosecuted. 
This problem is particularly troublesome given the examples of 
those illegal aliens who go on to commit serious crimes.
    For example, Rafael Resendez-Ramirez, the so-called 
``Railway Killer'' who killed at least eight people over a 3-
year period in the late 1990s, had an extensive criminal record 
in the United States beginning in 1976, including convictions 
for burglary and aggravated assault. He also had an extensive 
immigration record, having been arrested for illegal entry on 
seven occasions in 1998 alone. As the Department of Justice's 
Inspector General (IG) found, however: ``[B]ecause Resendez had 
not reached the threshold number of prior apprehensions for 
prosecution established in each of the stations where he was 
apprehended, he was not detained for prosecution,'' \14\ but 
instead was returned to Mexico. The IG found that ``after each 
return to Mexico, he reentered the United States illegally and 
continued his criminal activities,'' including the December 
1998 murder of Dr. Claudia Benton in Houston. Section 204 will 
shut the revolving door that allows criminal aliens to reenter 
the United States to prey on residents of the United States. By 
setting mandatory minimum sentences for these offenses, we will 
both deter alien criminals from reentering illegally and 
encourage their effective prosecution when they do.
---------------------------------------------------------------------------
    \14\ Office of the Inspector General, U.S. Department of Justice, 
Special Report--the Rafael Resendez-Ramirez Case: A Review of the INS's 
Actions and Operation of Its IDENT Automated Fingerprint System (2000).
---------------------------------------------------------------------------
    This section also resolves an issue that has arisen in 
numerous prosecutions under section 276 of the INA. At present, 
to prove a violation of section 276, the Government is required 
to show that the Secretary of Homeland Security did not consent 
to the alien applying for readmission to the United States or 
that the alien is not required to obtain such consent. Thus, in 
order to convict an alien of reentering the United States after 
removal, the Government must prove a negative, i.e., that the 
Attorney has not ``expressly consented to such alien's 
reapplying for admission.'' Each case therefore requires the 
Government to perform an intensive search of its records, and 
to then issue a certificate of nonexistence to certify that the 
search was done and no application from the specific alien-
defendant was found. Despite the fact that aliens rarely apply 
for the Secretary's consent, DHS must nevertheless make an 
exhaustive search in each case. Section 204 converts permission 
to reenter into an affirmative defense to an illegal reentry 
charge. Because few aliens apply for the consent of the 
Secretary of DHS, and the defendant-alien is in the best 
position to know whether he applied for such permission, this 
change will properly apportion the burden with respect to 
consent to reenter and eliminate the need for the Government to 
prove that the Secretary did not consent in its case-in-chief.
Section 205. Mandatory sentencing ranges for persons aiding or 
        assisting certain reentering aliens.
    Also based on the ``Criminal Alien Accountability Act,'' 
this section seeks to deter the smuggling of removed aliens by 
imposing on smugglers the same sentences that the aliens they 
have smuggled would receive.
Section 206. Prohibiting carrying or using a firearm during and in 
        relation to an alien smuggling crime.
    18 U.S.C. Sec. 924(c) criminalizes the carrying or use of 
firearms in the commission of violent or drug trafficking 
crimes. Presently, current law does not address alien smugglers 
who use firearms to further their crimes. Increasing numbers of 
alien smugglers are utilizing firearms to facilitate their 
smuggling, and a greater number are expected to arm themselves 
as their livelihood is disrupted by U.S. agents patrolling 
America's borders. The willingness of smugglers to use and 
carry firearms endangers the lives of Border Patrol agents, the 
aliens who are being smuggled, and innocent bystanders. The use 
of weapons also aids smugglers and aliens in escaping 
apprehension, as it allows them to forcibly resist border 
patrol officers. Given these facts, stronger punishment of 
smugglers who use weapons in the commission of their crimes is 
warranted. Section 206 will provide for such punishment by 
subjecting alien smugglers to the same penalties faced by 
criminals who carry firearms when they traffic in narcotics and 
commit Federal crimes of violence.
Section 207. Clarifying changes.
    This section clarifies that the provision barring entry to 
aliens who have made false claims to U.S. citizenship also 
applies to aliens who have made false claims to U.S. 
nationality. It also provides that DHS shall have access to any 
information kept by any Federal agency with regard to any 
person seeking a benefit or privilege under the immigration 
law.
Section 208. Voluntary departure reform.
    ``Voluntary departure'' is a benefit in removal proceedings 
that allows deportable aliens to agree to leave the United 
States within a specified time period of their own volition 
rather than facing a formal order of removal, while avoiding 
the adverse legal consequences of a final order of removal. 
Ideally, the Government should also benefit from this practice, 
as it is spared the expense of initiating removal proceedings, 
extensively litigating the aliens' cases, and, ultimately, 
removing the aliens. The Government may not realize such 
benefits in practice, however, because few aliens granted 
voluntary departure actually depart from the country 
expeditiously. In all too many cases, a grant of voluntary 
departure is merely a prelude to years of further litigation in 
which the alien continues to benefit from delay of removal. 
Under current law, an alien who receives voluntary departure 
may appeal his immigration case first to the Board of 
Immigration Appeals, and then to the Court of Appeals. Many 
circuit courts will toll the voluntary departure period pending 
review. At the end of this process, perhaps years after the 
original voluntary departure grant, and after denial of every 
appeal, the alien can then leave the United States in 
accordance with the original voluntary departure grant.
    Section 208 changes this process to encourage aliens to 
depart under the terms of the voluntary departure order. The 
section amends the INA to offer clear advantages for aliens who 
agree to voluntary departure and then actually depart. It also 
forecloses future litigation in the alien's case. Under this 
section, an alien may only be granted voluntary departure 
pursuant to an agreement in which the alien agrees to waive 
appeal. This will not preclude the alien opting to take an 
appeal in lieu of voluntary departure, however, such an action 
would void any voluntary departure agreement. Section 208 also 
contains penalties in the event that the alien fails to depart 
in accordance with the voluntary departure agreement. Failure 
to depart will subject the alien to a $3,000 fine, and the 
alien will be barred from certain forms of relief for as long 
as the alien remains in the country and for 10 years 
thereafter. An alien who violates a voluntary departure 
agreement by failing to depart may not reopen his removal 
proceedings, except to apply for withholding of removal or 
protection under the Convention Against Torture. Taken 
together, these provisions will ensure the effective use of the 
Government's limited judicial, litigation, and removal 
resources. They will also provide the alien with incentives to 
depart the United States as agreed. In addition, the maximum 
period of voluntary departure before the end of proceedings is 
reduced from 120 to 60 days, and aliens receiving such benefit 
must post bond or show that such a bond would create a hardship 
or is unnecessary.
Section 209. Deterring aliens ordered removed from remaining in the 
        United States unlawfully and from unlawfully returning to the 
        United States after departing voluntarily.
    DHS estimates that some 480,000 absconders--aliens who are 
under final orders of removal but have evaded apprehension and 
removal by DHS--are currently present in the United States, and 
that approximately 40,000 new absconders are added to these 
ranks each year. In 2003, the Department of Justice Inspector 
General issued a report that found that the former INS had 
successfully carried out removal orders with respect to only 13 
percent of non-detained aliens who were subject to final 
removal orders--and was able to remove only 3 percent of non-
detained aliens who had unsuccessfully sought asylum.\15\ A 
major barrier to effective removal of alien absconders is the 
fact that there are currently few effective administrative 
sanctions available under the law against absconders who have 
been apprehended beyond the mere execution of the same removal 
order that they had been successfully evaded for months or 
years. Even if such absconding aliens are unsuccessful in 
obtaining the reopening of their previous final order, they may 
simply launch a new round of litigation before the Board of 
Immigration Appeals (BIA) and the courts. Section 209 provides 
more effective administrative tools to deter absconders from 
remaining in this country illegally and to prevent them from 
obtaining any further advantages after flouting their removal 
orders. This section improves the bars on reentry by aliens 
ordered removed by closing a loophole allowing aliens to avoid 
these penalties by unlawfully remaining in the United States. 
Under section 209, the bars on admissibility will apply once 
the alien is ordered removed--even if that alien has not yet 
departed. Similarly, the section bars aliens from future 
discretionary relief if they have absconded after receiving a 
final order of removal until they have left the United States 
and for 10 years thereafter. It also bars the granting of 
motions to reopen to aliens who have flouted their legal duty 
to depart from the United States under the final order of 
removal. Taken together, these changes will diminish the 
likelihood that aliens will remain in the United States 
unlawfully with the hope of becoming eligible for some other 
form of relief in the future. By foreclosing future relief for 
aliens who fail to depart, the changes in section 209 will 
increase the incentive for aliens to seek and to comply with 
removal orders.
---------------------------------------------------------------------------
    \15\ See U.S. Department of Justice Office of the Inspector 
General, Evaluation and Inspections Division, The Immigration and 
Naturalization Services Removal of Aliens Issued Final Orders (I-2003-
004) at i, ii (2003).
---------------------------------------------------------------------------
Section 210. Establishment of a special task force for coordinating and 
        distributing information on fraudulent immigration documents.
    This section requires the Secretary of Homeland Security to 
establish a task force to collect information on the 
production, sale, and distribution of fraudulent documents to 
be used to enter or remain in the U.S. unlawfully, to maintain 
that information in a database, to convert the information into 
reports to provide guidance to Government officials, and to 
develop a system for distributing these reports to appropriate 
law enforcement agencies.

                    TITLE IV--DETENTION AND REMOVAL

Section 401. Mandatory detention for aliens apprehended at or between 
        ports of entry.
    This section requires the Department of Homeland Security 
by October 1, 2006, to detain all aliens apprehended at ports 
of entry or along the international land and maritime borders 
of the United States until they are removed from the United 
States or a final decision granting their admission has been 
determined. The only exceptions to mandatory detention are if 
the alien departs immediately, such as Mexican nationals who 
are voluntarily returned across the border, and those paroled 
due to urgent humanitarian reasons or significant public 
benefit.
    This will end the present ``revolving door'' whereby 
illegal aliens from countries other than Mexico are caught 
trying to illegally enter the U.S. and promptly released 
(because of a lack of detention space) with the hope that they 
will appear for their immigration court hearing months hence. 
As noted earlier, the Department of Justice's Office of the 
Inspector General found that the INS was only able to remove 13 
percent of nondetained aliens with final orders of removal. In 
2004, 120,000 of the 160,000 ``other-than-Mexicans'' 
apprehended along the border were released.
Section 402. Expansion and effective management of detention 
        facilities.
    This section requires the Secretary of Homeland Security to 
fully utilize all bed space owned and operated by the 
Department and to utilize all other possible options to cost-
effectively increase detention capacity, including temporary 
facilities, contracting with State and local jails, and 
establishing secure alternatives to detention.
Section 403. Enhancing transportation capacity for unlawful aliens.
    This section authorizes the Secretary of DHS to enter into 
contracts with private entities to provide secure domestic 
transportation of aliens apprehended at or between ports of 
entry from the custody of the Border Patrol to a detention 
facility.
Section 404. Denial of admission to nationals of country denying or 
        delaying accepting alien.
    Current law requires the Secretary of State to discontinue 
granting visas to nationals of countries that deny or 
unreasonably delay accepting the return of their nationals 
subject to deportation by the U.S. Because this punishment is 
so draconian--barring all nationals of a country from receiving 
visas--it is almost never used, despite the fact that a number 
of countries continue to refuse to accept the return of their 
nationals. This section would add a more measured punishment 
that is more likely to be used--authorizing the Secretary of 
Homeland Security to deny admission to any national of a 
country that declines to accept the prompt repatriation of its 
nationals.
Section 405. Report on financial burden of repatriation.
    This section requires the Secretary of DHS to submit an 
annual report to the Secretary of State and the Committee on 
Homeland Security that details the costs to the Department of 
Homeland Security for repatriating aliens and provides 
recommendations to more cost effectively repatriate such 
aliens.
Section 407. Expedited removal
    By the mid-1990's, tens of thousands of aliens were 
arriving at U.S. airports each year without valid documents and 
making meritless asylum claims, knowing that they would be 
released into the community pending asylum hearings because of 
a lack of detention space. Few were ever heard from again. In 
response, the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA) created the mechanism of 
``expedited removal.'' \16\ Under expedited removal, a DHS 
officer at a port-of-entry can immediately return an alien 
lacking proper documents to his or her country of origin unless 
the alien asks for asylum and can establish a ``credible fear'' 
of persecution. By fiscal year 2003, the INS was making over 
43,000 expedited removals per year and our airports were no 
longer being deluged.
---------------------------------------------------------------------------
    \16\ See INA section 235(b).
---------------------------------------------------------------------------
    IIRIRA provided the Administration with the authority to 
utilize expedited removal in the case of any alien who had 
entered the U.S. illegally and had not been present here for 2 
years.\17\ Until recently, the INS and DHS never made use of 
this power. Recently, the administration has begun using 
expedited removal along the southern border because of the 
large numbers of non-Mexican aliens who have been caught by the 
Border Patrol and then released into the United States because 
of a lack of detention space. Under the discretionary authority 
provided by IIRIRA, the administration has been utilizing 
expedited removal against non-Mexican aliens who are 
apprehended within 100 miles of the border and 14 days of 
unauthorized entry. Section 407 would mandate the use of 
expedited removal in these instances.
---------------------------------------------------------------------------
    \17\ See INA section 235(b)(1)(A)(iii).
---------------------------------------------------------------------------
Section 408. GAO Study on deaths in custody.
    This section requires the Government Accountability Office 
(GAO) to submit within 6 months of enactment a report to 
Congress on the deaths in custody of detainees held on 
immigration violations by the Department of Homeland Security.

                TITLE VI--TERRORIST AND CRIMINAL ALIENS

Section 601. Removal of terrorist aliens.
    Withholding of removal is a form of protection that, while 
similar to asylum, differs in two important respects: (1) it is 
nondiscretionary; and (2) to receive this benefit, the alien 
must meet a higher standard of proof than asylum. Although 
aliens who pose a danger to the national security generally are 
barred from withholding of removal, aliens deportable on 
terrorist grounds are not expressly barred from such relief. 
This section bars aliens deportable on terrorist grounds from 
receiving withholding of removal.
    As the 9/11 Commission's staff report on terrorist travel 
makes clear, terrorist aliens have abused our humanitarian 
benefits to remain in the United States.\18\ First World Trade 
Center bomber Ramzi Yousef, the Blind Sheikh, and Mir Kansi, 
who killed two in front of headquarters of the CIA, all made 
claims to asylum to remain in the United States. Congress has 
barred terrorist aliens from receiving asylum, but the bars to 
terrorist aliens receiving withholding of removal, are less 
clear. Under the INA, aliens are currently only barred from 
withholding if there are reasonable grounds to believe that 
they are a danger to the security of the United States. While 
the INA states that aliens, who are described in the provision 
that renders aliens deportable who have engaged in any 
terrorist activity, ``shall be considered to be . . . alien[s] 
with respect to whom there are reasonable grounds for regarding 
as a danger to the security of the United States,'' aliens with 
terrorist ties have made claims that they are not a danger to 
the security of the U.S., and thus eligible for withholding.
---------------------------------------------------------------------------
    \18\ See 9-11 and Terrorist Travel: Staff Report of the National 
Commission on Terrorist Attacks Upon the United States at pgs. 47, 99 
(2004).
---------------------------------------------------------------------------
    Section 601 bars all aliens described in the terrorist 
grounds of inadmissibility from eligibility for withholding of 
removal, with two exceptions. The exceptions give DHS the sole 
discretion to determine that representatives of terrorist 
groups, and the spouses and children of aliens who would 
themselves be barred on terrorist grounds, are not a danger to 
the national security and are not barred from such relief. The 
terrorist representative exception provision is already 
contained in the asylum provision, and the spouse or child 
exception was added at the request of DHS. The amendments to 
section 601 will ensure that the same standards apply in 
assessing whether aliens are eligible for the two primary forms 
of humanitarian relief, asylum and withholding of removal.
Section 602. Detention of dangerous aliens.
    In the 2001 decision of Zadvydas v. Davis,\19\ the Supreme 
Court ruled that under current law, aliens who had been 
admitted to the U.S. and then ordered removed could not be 
detained for more than 6 months if for some reason they could 
not be removed. Then, in Clark v. Martinez,\20\ the Court dealt 
with two Cubans who came to the U.S. during the Mariel boatlift 
and later committed crimes including assault with a deadly 
weapon, attempted sexual assault, and armed robbery. The Court 
expanded its decision in Zadvydas to apply to such non-admitted 
aliens. Based on these two decisions, the Justice Department 
and the Department of Homeland Security have had no choice but 
to release back onto the streets many hundreds of criminal 
aliens. Jonathan Cohn, Deputy Assistant Attorney General, has 
testified that ``the Government is [now] required to release 
numerous rapists, child molesters, murderers, and other 
dangerous illegal aliens into our streets. . . . [V]icious 
criminal aliens are now being set free within the U.S.'' \21\ 
Cohn referenced the release of aliens including murderers, a 
schizophrenic sex offender and pedophiles. Many of these aliens 
were Mariel Cubans released from Cuban jails or aliens who have 
received relief from removal pursuant to the Convention Against 
Torture (CAT), which prohibits the return of an alien to a 
country where there are substantial grounds for believing that 
he or she would be in danger of being tortured. Almost 900 
criminal aliens ordered removed have received CAT relief and 
have subsequently been released into our communities pursuant 
to these decisions. This includes at least one alien who was 
implicated in a mob-related quintuple homicide in 
Uzbekistan.\22\ Also, one alien removable on terrorism grounds 
has been released after receiving CAT protection. One of the 
aliens released has subsequently been arrested for shooting a 
New York State trooper in the head.
---------------------------------------------------------------------------
    \19\ 533 U.S. 678 (2001).
    \20\ 543 U.S. 371 (2005).
    \21\ Strengthening Immigration Enforcement, Hearing Before the 
Subcomm. on Immigration, Border Security and Citizenship and the 
Subcomm. on Terrorism, Technology and Homeland Security of the Senate 
Comm. on the Judiciary, 109th Cong. (2005).
    \22\ See Immigration Relief Under the Convention Against Torture 
for Serious Criminals and Human Rights Violators: Hearing Before the 
Subcomm. on Immigration, Border Security and Claims of the House Comm. 
on the Judiciary, 108th Cong. (2003).
---------------------------------------------------------------------------
    Section 602 allows DHS to detain specified dangerous aliens 
under orders of removal who cannot be removed. The section 
would authorize DHS to detain aliens who are stopped at the 
border beyond 6 months. The section would also authorize DHS to 
detain aliens who effected an entry beyond 6 months, but only 
if: (1) the alien will be removed in the reasonably foreseeable 
future; (2) the alien would have been removed but for the 
alien's refusal to make all reasonable efforts to comply and 
cooperate with the Secretary of DHS' efforts to remove him; (3) 
the alien has a highly contagious disease; (4) release would 
have serious adverse foreign policy consequences; (5) release 
would threaten national security; or (6) release would threaten 
the safety of the community and the alien either is an 
aggravated felon or is mentally ill and has committed a crime 
of violence. Such aliens may be detained for periods of 6 
months at a time, and the period of detention may be renewed. 
This section also provides for judicial review of detention 
decisions in the United States District Court for the District 
of Columbia.
Section 603. Increase in criminal penalties.
    This section increases penalties and sets mandatory minimum 
sentences for aliens who fail to depart when ordered removed or 
obstruct their removal, or who fail to comply with the terms of 
release pending removal.
Section 604. Precluding admissibility of aggravated felons and other 
        criminals.
    In the Immigration and Nationality Act, the most serious 
criminal offenses are deemed aggravated felonies. A conviction 
for an aggravated felony can have significant consequences for 
an alien. Such an offense requires the removal of an admitted 
alien and bars him from most forms of relief, and also subjects 
an alien to an increased sentence for certain crimes. However, 
under current law a conviction for an aggravated felony is not, 
per se, a ground of inadmissibility. For this reason, an 
aggravated felony conviction will not render an alien 
inadmissible under section 212(a)(2) of the INA unless the 
conviction also falls within one of the existing criminal 
grounds of inadmissibility, such as a crime involving moral 
turpitude, or a controlled substance or money laundering 
offense. Section 604 bars aggravated felons from admission and 
from receiving discretionary waivers of inadmissibility under 
section 212(h) of the INA. This corrects an anomaly under 
current law by which aliens with aggravated felony convictions 
who are present illegally may receive waivers under that 
provision, while lawful permanent resident aliens may not.
    Section 604 also applies the domestic violence ground of 
deportability to inadmissibility. This will prevent aliens who 
have been convicted of crimes of domestic violence, stalking, 
child abuse and child neglect from entering and remaining in 
the United States. Finally, section 604 amends the 
inadmissibility grounds to bar the admission of aliens who have 
committed or been convicted of crimes relating to Social 
Security fraud or the unlawful procurement of citizenship.
Section 605. Precluding refugee or asylee adjustment of status for 
        aggravated felonies.
    In various statutory enactments since 1988, Congress has 
attached a series of stringent restrictions upon the 
eligibility of aliens to obtain almost all forms of 
discretionary immigration relief after they have been convicted 
of an aggravated felony. In particular, under the asylum 
provisions, an alien convicted of an aggravated felony is 
conclusively barred from being granted asylum, and a grant of 
asylum may be terminated if it is determined that the alien has 
become subject to one of the mandatory bars to asylum, 
including an asylee being convicted of an aggravated felony. 
However, the provision governing asylee and refugee adjustment 
to permanent resident status does not expressly bar an 
applicant from obtaining adjustment where the alien has been 
convicted of an aggravated felony after obtaining refugee or 
asylee status. Not only is this inconsistent with statutory 
bars on almost all discretionary immigration relief for 
aggravated felons, it is also inconsistent with the treatment 
that the asylee or refugee would be accorded after adjustment. 
Specifically, an alien who has been granted refugee or asylee 
adjustment is barred from obtaining cancellation of removal, a 
waiver under section 212(h) of the INA, or section 212(c) 
relief from removal if the alien is convicted of an aggravated 
felony after attaining such status. Section 605 corrects this 
discrepancy by barring asylees and refugees convicted of 
aggravated felonies from adjustment.
Section 606. Removing drunk drivers.
    Recent news reports have underscored the tragic cost 
inflicted by aliens who have taken lives while driving under 
the influence of alcohol. Two cases from North Carolina 
underscore this problem. In each, the alien driver has been 
charged with drinking and killing another driver. Authorities 
have alleged that a Gaston County teacher was killed in July by 
an illegal Mexican national with five previous charges of 
Driving While Intoxicated (DWI). That alien has been charged 
with DWI and second degree murder. The police have also 
reported that a University of North Carolina-Charlotte student 
was killed in November by an illegal Mexican national who 
reportedly had two prior impaired-driving arrests and had drunk 
six beers before the accident. That alien, who had previously 
been sent back to Mexico 17 times, was also charged with 
second-degree murder. Despite the risks posed by drunk drivers, 
this offense is not currently a ground of removal. This section 
renders aliens convicted of three or more drunk driving 
offenses deportable.
Section 607. Designated county law enforcement assistance program.
    Section 607, based on Representative Culberson's ``Border 
Law Enforcement Act of 2005,'' (H.R. 4360) authorizes local 
sheriffs in the 29 counties along the southern border to 
transfer illegal aliens they have arrested to Federal custody. 
It also specifically reimburses those sheriffs for costs 
associated with detaining illegal aliens they arrest until they 
are able to hand them over to Federal authorities. The section 
deems aliens in sheriffs' custody to be in Federal custody once 
determined to be unlawfully present.
Section 608. Rendering inadmissible and deportable aliens participating 
        in criminal street gangs; detention; ineligibility from 
        protection from removal and asylum.
    Crime by alien members of criminal street gangs is 
drastically increasing. Former ICE Assistant Secretary Mike 
Garcia has stated: ``In the last decade, the United States has 
experienced a dramatic increase in the number and size of 
transnational street gangs. . . . These gangs have a 
significant, often a majority, foreign-born membership. . . .'' 
\23\ He also stated, ``[E]ntire neighborhoods and sometimes 
whole communities are held hostage by and subjected to the 
violence of street gangs.'' Currently, however, aliens who are 
members of criminal street gangs are not deportable or 
inadmissible, and can receive asylum and temporary protected 
status (TPS), until they are convicted of a specific criminal 
act. Many of the members in the United States of these gangs 
are present in the U.S. under TPS.\24\ One of the most violent 
and fastest-growing gangs, Mara Salvatrucha-13 (MS-13), was 
formed by Salvadorans who entered the U.S. during the civil war 
in El Salvador in the 1980's. There are an estimated 8,000 to 
10,000 members in 31 States. The gang is estimated to have as 
many as 50,000 members internationally. There have been 18 MS-
13-related killings in North Carolina, 11 in Northern Virginia, 
and at least eight in Los Angeles in the past 2 years.
---------------------------------------------------------------------------
    \23\ Immigration and the Alien Gang Epidemic: Problems and 
Solutions: Hearing Before the Subcomm. on Immigration, Border Security 
and Claims of the House Comm. on the Judiciary, 109th Cong. (2005).
    \24\ Id. (Of 5,000 gang members in a database that ICE compiled for 
Operation Community Shield, 291 El Salvadoran nationals, 43 Hondurans, 
and one Nicaraguan had been granted TPS, 6.7 percent of the total).
---------------------------------------------------------------------------
    Section 608, based on Representative Forbes's ``Alien Gang 
Removal Act of 2005,'' (H.R. 2933) renders alien gang members 
deportable and inadmissible, mandates their detention, and bars 
them from receiving asylum or TPS. This section adopts 
procedures similar to those used by the State Department to 
designate foreign terrorist organizations to enable the 
Attorney General to designate criminal street gangs for 
purposes of the immigration laws. ``Criminal street gangs'' are 
defined as ``a formal or informal group or association of three 
or more individuals, who commit two or more gang crimes (one of 
which is a crime of violence . . .) in two or more separate 
criminal episodes, in relation to the group or association.'' 
``Gang crime'' is defined in that subsection as ``conduct 
constituting any Federal or State crime, punishable by 
imprisonment for 1 year or more'' in various categories, 
including crimes of violence, obstruction of justice, witness 
tampering, burglary, and drug trafficking.
Section 609. Naturalization reform.
    Alien terrorists are deportable and are also barred from 
admission and most other forms of immigration relief. However, 
there are no express bars for terrorists from being 
naturalized, the most significant benefit that the United 
States can bestow on an alien. Section 609 would close this 
loophole and bar alien terrorists from naturalization.
    Section 609 would also correct other discrepancies in the 
naturalization provisions. When INS was given authority to 
grant naturalization, INS was precluded from granting that 
benefit as long the applicant was in removal proceedings. That 
preclusion did not, however, apply to district courts, which 
retained part of their historic authority over naturalization. 
Section 609 corrects this incongruity by barring district court 
consideration of naturalization applications while the 
applicant is in removal proceedings. Section 609 also holds in 
abeyance petitions to grant status for relatives filed by 
individuals who are, themselves, facing denaturalization or 
removal. Needless to say, if these individuals are in jeopardy 
of losing the status that makes their relatives eligible for 
benefits, it makes no sense to grant those benefits until the 
petitioner's status is clarified.
    Currently, aliens can go to district court if their 
naturalization applications have been pending with DHS for more 
than 120 days. Section 209 gives DHS 180 days to adjudicate 
these applications, and limits District Court relief to remand 
for adjudication by DHS, making the provision more in line with 
traditional mandamus actions. Finally, the section limits court 
review of DHS's findings with respect to whether a 
naturalization applicant has good moral character, whether the 
alien understands and is attached to the principles of the 
Constitution, and is well disposed to the good order and 
happiness of the United States. These findings are similar to 
other discretionary determinations that are precluded from 
judicial review.
Section 610. Expedited removal for aliens inadmissible on criminal or 
        security grounds.
    This section will allow DHS to use the same expedited 
procedures that are available for the removal of aggravated 
felons to remove other inadmissible criminal aliens who entered 
illegally and who are otherwise ineligible for relief. At the 
present time, these aliens must be placed in removal 
proceedings before an immigration judge despite the fact that 
they are not eligible for any relief. Those proceedings can be 
rescheduled multiple times and take several weeks before the 
alien is eventually deported.
Section 611. Technical correction for effective date in change in 
        inadmissibility for terrorists under REAL ID Act.
    Section 103 of the REAL ID Act was designed to ensure the 
removal of aliens tied to terrorist organizations. However, 
aliens currently in deportation proceedings initiated before 
the effective date of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 have claimed that the REAL 
ID Act does not apply to them. Section 611 clarifies that the 
amendments in the terrorist grounds of removal in the REAL ID 
Act are to be applied to aliens in all removal, deportation, 
and exclusion cases, regardless of when those cases were 
initiated.
Section 612. Bar to good moral character.
    Applicants for certain immigration benefits, including 
naturalization, voluntary departure, and cancellation of 
removal, must demonstrate ``good moral character,'' as defined 
in the INA. At present, although the definition excludes (among 
others) ``habitual drunkards'' and gamblers, it does not 
expressly exclude aliens who are terrorists or those who aid or 
support terrorism. Section 612 corrects this discrepancy by 
barring terrorist aliens from showing good moral character. In 
addition, because the definition of ``good moral character'' in 
the INA does not, and could never, cover all situations in 
which applicants could be shown not to have good moral 
character, this provision gives the Secretary of Homeland 
Security and the Attorney General discretionary authority to 
make a good moral character determination in situations not 
specifically set forth by the definition. The section clarifies 
that the aggravated felony bar to good moral character applies 
regardless of when the crime was classified as an aggravated 
felony and clarifies the discretionary authority of DHS to find 
an alien not to be of good moral character may be based upon 
actions that did not occur within the requisite period of time 
for which good moral character must be established.
Section 613. Strengthening definitions of ``aggravated felony'' and 
        ``conviction.''
    The ``aggravated felony'' definition in the INA covers both 
murder and crimes of violence for which the term of 
imprisonment is at least a year, but significantly, it does not 
specifically include manslaughter and homicide. Many aliens 
accused of murder, however, will plead to these lesser 
offenses. Section 613 will ensure that all aliens who have 
taken the life of another are covered by the ``aggravated 
felony'' definition. In addition, while the sexual abuse of a 
minor is an aggravated felony, proof in such cases can be 
limited where the victim was a minor, but the offense does not 
list the alien's minority as an element. Section 613 allows 
extrinsic evidence to be offered to establish the minority of 
the victim in a sexual abuse case. The section also prevents 
State courts from interfering in Federal immigration law by 
reversing or vacating convictions after they have been entered 
in order to forestall removal. Some State courts have granted 
requests by criminal aliens to revise their sentences and 
convictions to allow them to avoid the immigration consequences 
of their acts, and have even granted these requests after 
aliens have served their sentences. Section 613 makes it clear 
that immigration consequences will continue to attach to 
convictions that have been the subject of post-judicial 
amendment unless that amendment occurred because the alien was 
not guilty of the offense.
Section 614. Deportability for criminal offenses.
    This section renders removable aliens who have unlawfully 
procured citizenship as well as aliens convicted of offenses 
relating to misuse of Social Security numbers and cards and 
fraud in connection with identification documents.
Sections 701-708. Employment Eligibility Verification
    The Immigration Reform and Control Act of 1986 (IRCA) made 
it unlawful for employers to knowingly hire or employ aliens 
not eligible to work and required employers to check the 
identity and work eligibility documents of all new employees. 
The Act was designed to end the ``job magnet'' that draws the 
vast majority of illegal aliens to the United States. Under 
IRCA, if the documents provided by an employee reasonably 
appear on their face to be genuine, an employer has met its 
document review obligation. Unfortunately, the easy 
availability of counterfeit documents has made a mockery of 
IRCA. Fake documents are produced by the millions and can be 
obtained cheaply. Thus, the current system both benefits 
unscrupulous employers who do not mind hiring illegal aliens 
but want to show that they have met legal requirements and 
harms employers who do not want to hire illegal aliens but have 
no choice but to accept documents they know have a good 
likelihood of being counterfeit.
    In the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, Congress responded to the 
deficiencies of IRCA by establishing three employment 
eligibility verification pilot programs for volunteer employers 
in selected States. Under the basic pilot program, the Social 
Security numbers and alien identification numbers of new hires 
are checked against Social Security Administration and 
Department of Homeland Security records in order to identify 
fraudulent numbers and thus to ensure that new hires are 
genuinely eligible to work. A 2001 report on the basic pilot 
program found that ``an overwhelming majority of employers 
participating found the basic pilot program to be an effective 
and reliable tool for employment verification'' \25\--96 
percent of employers found it to be an effective tool for 
employment verification; and 94 percent of employers believed 
it to be more reliable than the IRCA-required document 
check.\26\ In 2003, Congress extended the basic pilot program 
for another 5 years and made it available to employers 
Nationwide.\27\
---------------------------------------------------------------------------
    \25\ Institute for Survey Research & Westat, INS Basic Pilot 
Summary Report at v.
    \26\ See id. at 16.
    \27\ Pub. L. No. 108-156.
---------------------------------------------------------------------------
    A basic description of the basic pilot works is detailed 
below.

         LAn employer has 3 days from the date of hire 
        to make an inquiry by phone or other electronic means 
        to the confirmation office. If the new hire claims to 
        be a citizen, the employer will transmit his or her 
        name and Social Security number. If the new hire claims 
        to be a non-citizen, the employer will transmit his or 
        her name, alien identification number and Social 
        Security number.

         LThe confirmation office will compare the name 
        and Social Security number provided against information 
        contained in Social Security Administration records 
        and, if necessary, will compare the name and DHS-issued 
        number provided against information contained in DHS 
        records.

         LIf in checking the records, the confirmation 
        office ascertains that the new hire is eligible to 
        work, the operator will within 3 days so inform the 
        employer. If the confirmation office cannot confirm the 
        work eligibility of the new hire, it will within 3 days 
        so inform the employer of a tentative nonconfirmation.

         LIf a new hire does not contest the tentative 
        nonconfirmation, it shall be considered a final 
        nonconfirmation. If a new hire wishes to contest the 
        tentative nonconfirmation, secondary verification will 
        be undertaken. Secondary verification is an expedited 
        procedure set up to confirm the validity of information 
        contained in the Government records and provided by the 
        new hire. Under this process, the new hire will 
        typically contact or visit the Social Security 
        Administration and/or DHS to see why the Government 
        records disagree with the information he or she has 
        provided. If the new hire requests secondary 
        verification, he or she cannot be fired on the basis of 
        the tentative nonconfirmation.

         LIf the discrepancy can be reconciled within 
        10 days, then confirmation of work eligibility will be 
        given to the employer by the end of this period. If the 
        discrepancy cannot be reconciled within 10 days, final 
        denial of confirmation will be given by the end of this 
        period. The employer then has two options. It can 
        dismiss the new hire as being ineligible to work in the 
        United States or it can continue to employ the new 
        hire. If the employer continues to employ the new hire, 
        it must notify DHS of this decision or be subject to 
        penalty. If legal action is brought by the Government 
        subsequent to such notification, the employer is then 
        subject to a rebuttable presumption that it has 
        knowingly hired an illegal alien.

    Title VII will make participation in the basic pilot 
program mandatory for all employers within 2 years of 
enactment. It will also expand the system to provide for 
verification of previously-hired employees. Employers will be 
able to use the system to verify previously-hired employees on 
a voluntary basis (as long as they do not do so in a 
discriminatory manner) 2 years after enactment. By 3 years 
after enactment, Federal, State, and local governments and the 
military must verify the employment eligibility of all workers 
who have not been previously subject to verification under the 
system, as must other employers for those employees working at 
Federal, State or local Government buildings, military bases, 
nuclear energy sites, weapons sites, airports, and critical 
infrastructure sites. By 6 years after enactment, all employers 
must verify the employment eligibility of all workers who have 
not been previously subject to verification under the system.
    The title requires DHS to investigate situations in which a 
Social Security number is submitted more than once by the same 
employer, or where a Social Security number is submitted by 
multiple employers, in a manner that suggests fraud. The title 
exempts employers from liability who rely in good faith on 
information provided by the verification system. The title also 
applies employment eligibility verification requirements to day 
labor sites and other hiring halls.
    The title establishes civil penalties for failure to comply 
with the employment eligibility verification requirements and 
increases civil penalties for knowingly hiring or employing 
aliens ineligible to work or for failing to comply with the I-9 
process.
    The title requires the Social Security Administration (SSA) 
to conduct a study on the cost and administrability of the 
elements of Representative David Dreier's ``Illegal Immigration 
Enforcement and Social Security Protection Act of 2005'' (H.R. 
98). This proposal requires: hardened, secure Social Security 
cards with an electronic strip and digital photograph; the 
creation of a unified database between SSA and DHS for 
employment eligibility verification; and a requirement that 
employers verify employment eligibility verification of new 
hires by swiping the secure Social Security card through an 
electronic card-reader.
Section 801. Board of Immigration Appeals removal order authority.
    The Ninth Circuit has given aliens additional opportunities 
to needlessly hinder their removal by requiring the Board of 
Immigration Appeals (BIA) to remand cases in which it has 
reversed an immigration judge decision granting an alien relief 
back to the immigration judge for entry of the order of 
removal. Section 801 expressly provides the BIA authority to 
reverse an immigration judge decision and enter an order of 
removal without remanding to the immigration judge.
Section 802. Judicial review of visa revocation.
    The INA allows consular officers to revoke visas after they 
have been issued. However, prior to enactment of the 
Intelligence Reform and Terrorism Prevention Act of 2004, if a 
visa was revoked after an alien entered the United States, the 
alien was allowed to remain in the United States under the 
terms of admission since there existed no ground of removal for 
visa revocation. Section 5304 of the Intelligence Reform Act 
created a ground of removal for aliens whose visas were revoked 
after entry. This was spurred by a Government Accountability 
Office (GAO) investigation that revealed that the absence of 
such a ground of removal posed a risk to the American people. 
In October 2002, GAO reported that the State Department had 
revoked 105 visas that had been erroneously issued to aliens, 
about whom there were questions about possible terror ties, 
before their background checks had been completed.\28\ GAO 
found that immigration agents did not attempt to track down 
those aliens whose visas had been revoked because of the 
difficulty in removing those aliens from the United States. 
DHS' inability to remove aliens after their visas were revoked 
was especially problematic in terrorism cases, because 
information linking an alien to terrorism is often classified, 
but classified information cannot be used to prove 
deportability. The House acted to close this loophole in the 
Intelligence Reform Act by adding a provision to make visa 
revocation a freestanding ground of removal. However, in 
conference a modification was added stating that visa 
revocation decisions would be judicially reviewable if 
revocation was the sole basis for the order of removal under 
review. This change has rendered the revocation ground of 
removal worthless as a removal tool. Not only could such review 
disclose the sensitive information that the revocation ground 
of removal is intended to protect, but it would also undermine 
the consular nonreviewability doctrine, and allow courts to 
second-guess all visa denial decisions. Accordingly, section 
802 removes the judicial review provision added in the 
conference.
---------------------------------------------------------------------------
    \28\ See U.S. General Accounting Office, Border Security--New 
Policies and Procedures Are Needed to Fill Gaps in the Visa Revocation 
Process at 12, GAO-03-798 (2003).
---------------------------------------------------------------------------
Section 803. Reinstatement.
    Section 241 of the INA provides that the Government may 
remove an alien who has reentered the country illegally after 
being removed, pursuant to the prior order of removal. This 
provision is meant to preserve judicial resources, and to close 
the revolving door of illegal reentry by allowing DHS to 
summarily deport aliens who have reentered after removal, 
without having to obtain a new removal order from an 
immigration judge. In accordance with section 241, DHS has 
promulgated a regulation that permits reinstatement of removal 
orders by DHS officers. However, the Ninth Circuit has recently 
invalidated DHS's regulation and held that aliens are entitled 
to have their reinstatement cases adjudicated by immigration 
judges.\29\ In fiscal year 2004, prior to the Ninth Circuit's 
decision, DHS removed 42,886 aliens in that circuit through 
reinstatement. Under the Ninth Circuit's decision, immigration 
judges now must hear tens of thousands of additional cases 
annually from aliens ineligible for relief. This is a waste of 
extremely limited resources. Section 803 overrules the Ninth 
Circuit decision, validates DHS's regulation, and allows the 
department to deport an alien who reentered illegally after 
being removed without having to place the alien in removal 
proceedings again.
---------------------------------------------------------------------------
    \29\ See Morales-Izquierdo v. Ashcroft, 388 F. 3d 1299 (9th Cir. 
2004).
---------------------------------------------------------------------------
Section 804. Withholding of removal.
    Section 101(a)(3) of the REAL ID Act requires an asylum 
applicant to show that one of the five protected 
characteristics--race, religion, political opinion, 
nationality, or membership in a particular social group--``was 
or will be at least one central reason'' why the alien was 
persecuted or fears persecution and thereby is eligible for 
asylum. Section 804 clarifies that the REAL ID motivation 
standard for asylum applies to withholding of removal. Unless 
this clarification is made, applicants for withholding, who 
have traditionally borne a higher burden than applicants for 
asylum, now will be found to have a lesser burden.
Section 805. Certificate of reviewability.
    There has been a drastic increase in the number of 
petitions for review filed in the courts of appeals from 
immigration decisions in the past few years. In fiscal year 
2001, there were 1,654 such petitions filed. By 2004, 10,681 
immigration petitions for review were filed. The vast majority 
of these petitions, once reviewed, are denied. In 2004, for 
example, the Board of Immigration Appeals' determinations were 
sustained by the courts in over 90 percent of the cases 
decided, a rate that has actually increased since the Board 
adopted its ``streamlining'' reforms in 2002. Section 805 
responds to the filing of meritless appeals of removal orders 
by establishing a screening process for aliens' appeals of BIA 
decisions. Under this provision, appeals will be referred to a 
single circuit court judge for initial review. If that judge 
decides that the alien has made a substantial showing that the 
alien's petition for review is likely to be granted, the judge 
will issue a ``certificate of reviewability'' allowing the case 
to proceed to a three-judge panel. The provision focuses 
limited judicial resources on those petitions for review with 
the greatest likelihood of proving meritorious.
Section 806. Waiver of rights in nonimmigrant visa issuance.
    Currently, aliens seeking to enter the United States under 
the visa waiver program must waive access to the Immigration 
Court to challenge removal by any means other than asylum. No 
similar restriction is placed on the other nonimmigrants who 
are admitted annually. Section 806 would impose the same review 
conditions on all nonimmigrant visas that now apply only to 
visa waiver admissions, and require aliens seeking to enter 
temporarily to waive their ability to contest, other than 
through asylum, any action to deny them admission or remove 
them.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

IMMIGRATION AND NATIONALITY ACT

           *       *       *       *       *       *       *


                            TABLE OF CONTENTS

     * * * * * * *

                          Title II--Immigration

     * * * * * * *

   chapter 2--qualifications for admission of aliens; travel control of 
                           citizens and aliens

     * * * * * * *
Sec. 219A.  Designation of criminal street gangs.
     * * * * * * *

                   chapter 8--general penalty provisions

     * * * * * * *
[Sec. 274.  Bringing in and harboring certain aliens.]
Sec. 274.  Alien smuggling and related offenses.
     * * * * * * *

                            TITLE I--GENERAL

                              definitions

    Section 101. (a) As used in this Act--
    (1) * * *

           *       *       *       *       *       *       *

    (43) The term ``aggravated felony'' means--
                    [(A) murder, rape, or sexual abuse of a 
                minor;]
                    (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;

           *       *       *       *       *       *       *

                    (F) a crime of violence (as defined in 
                section 16 of title 18, United States Code, but 
                not including a purely political offense, 
                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,) for which 
                the term of imprisonment at least one year;

           *       *       *       *       *       *       *

                    (N) an offense described in [paragraph 
                (1)(A) or (2) of section 274(a) (relating to 
                alien smuggling)] section 274(a), except in the 
                case of a first offense for which the alien has 
                affirmatively shown that the alien committed 
                the offense for the purpose of assisting, 
                abetting, or aiding only the alien's spouse, 
                child, or parent (and no other individual) to 
                violate a provision of this Act;
                    (O) an offense described in [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] section 275 or section 276 for 
                which the term of imprisonment was at least one 
                year;

           *       *       *       *       *       *       *

                    (U) soliciting, aiding, abetting, 
                counseling, commanding, inducing, procuring or 
                an attempt or conspiracy to commit an offense 
                described in this paragraph.
        [The term applies 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. 
        Notwithstanding any other provision of law (including 
        any effective date), the term applies regardless of 
        whether the conviction was entered before, on, or after 
        the date of enactment of this paragraph.] 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).

           *       *       *       *       *       *       *

    [(47)(A) The term ``order of deportation'' means the order 
of the special inquiry officer, or other such administrative 
officer to whom the Attorney General has delegated the 
responsibility for determining whether an alien is deportable, 
concluding that the alien is deportable or ordering 
deportation.
    [(B) The order described under subparagraph (A) shall 
become final upon the earlier of--
            [(i) a determination by the Board of Immigration 
        Appeals affirming such order; or
            [(ii) the expiration of the period in which the 
        alien is permitted to seek review of such order by the 
        Board of Immigration Appeals.]
    (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.
    (48)(A) The term ``conviction'' means, with respect to an 
alien, a formal judgment of guilt of the alien entered by a 
court or, if adjudication of guilt has been withheld, where--
            (i) * * *

           *       *       *       *       *       *       *

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.

           *       *       *       *       *       *       *

    (f) For the purposes of this Act--
    No person shall be regarded as, or found to be, a person of 
good moral character who, during the period for which good 
moral character is required to be established, is, or was--
            (1) * * *
            (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;

           *       *       *       *       *       *       *

            (8) one who at any time has been convicted of an 
        aggravated felony (as defined in subsection (a)(43)), 
        regardless whether the crime was classified as an 
        aggravated felony at the time of conviction; or

           *       *       *       *       *       *       *

    [The fact that any person is not within any of the 
foregoing classes shall not preclude a finding that for other 
reasons such person is or was not of good moral character.] 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. In the case of an alien who makes a false statement or 
claim of citizenship, or who registers to vote or votes in a 
Federal, State, or local election (including an initiative, 
recall, or referendum) in violation of a lawful restriction of 
such registration or voting to citizens, if each natural parent 
of the alien (or, in the case of an adopted alien, each 
adoptive parent of the alien) is or was a citizen (whether by 
birth or naturalization), the alien permanently resided in the 
United States prior to attaining the age of 16, and the alien 
reasonably believed at the time of such statement, claim, or 
violation that he or she was a citizen, no finding that the 
alien is, or was, not of good moral character may be made based 
on it.

           *       *       *       *       *       *       *


                         TITLE II--IMMIGRATION

Chapter 1--Selection System

           *       *       *       *       *       *       *


                procedure for granting immigrant status

    Sec. 204. (a) * * *
    (b) After an investigation of the facts in each case, and 
after consultation with the Secretary of Labor with respect to 
petitions to accord a status under section 203(b)(2) or 
203(b)(3), the Attorney General shall, if he determines that 
the facts stated in the petition are true and that the alien in 
behalf of whom the petition is made is an immediate relative 
specified in section 201(b) or is eligible for preference under 
subsection (a) or (b) of section 203, approve the petition and 
forward one copy thereof to the Department of State. The 
Secretary of State shall then authorize the consular officer 
concerned to grant the preference status. 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.

           *       *       *       *       *       *       *


                                 ASYLUM

    Sec. 208. (a) * * *
    (b) Conditions for Granting Asylum.--
            (1) * * *
            (2) Exceptions.--
                    (A) In general.--Paragraph (1) shall not 
                apply to an alien if the Attorney General 
                determines that--
                            (i) * * *

           *       *       *       *       *       *       *

                            (v) the alien is described in 
                        [subclause (I), (II), (III), (IV), or 
                        (VI)] any subclause of section 
                        212(a)(3)(B)(i) or section 
                        [237(a)(4)(B)] 212(a)(3)(F) (relating 
                        to terrorist activity), unless, in the 
                        case only of an alien inadmissible 
                        under subclause (IV) or (IX) of section 
                        212(a)(3)(B)(i), the Attorney General 
                        determines, in the Attorney General's 
                        discretion, that there are not 
                        reasonable grounds for regarding the 
                        alien as a danger to the security of 
                        the United States; [or]
                            (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
                            [(vi)] (vii) the alien was firmly 
                        resettled in another country prior to 
                        arriving in the United States.

           *       *       *       *       *       *       *


                    adjustment of status of refugees

    Sec. 209. (a) * * *

           *       *       *       *       *       *       *

    (c) The provisions of paragraphs (4), (5), and (7)(A) of 
section 212(a) shall not be applicable to any alien seeking 
adjustment of status under this section, and the Secretary of 
Homeland Security or the Attorney General may waive any other 
provision of such section (other than paragraph (2)(C) or 
subparagraph (A), (B), (C), or (E) of paragraph (3)) with 
respect to such an alien for humanitarian purposes, to assure 
family unity, or when it is otherwise in the public interest. 
However, an alien who is convicted of an aggravated felony is 
not eligible for a waiver or for adjustment of status under 
this section.

           *       *       *       *       *       *       *


 Chapter 2--Qualifications for Admission of Aliens; Travel Control of 
Citizens and Aliens

           *       *       *       *       *       *       *


 GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE 
               FOR ADMISSION; WAIVERS OF INADMISSIBILITY

      Sec. 212. (a) Classes of Aliens Ineligible for Visas or 
Admission.--Except as otherwise provided in this Act, aliens 
who are inadmissible under the following paragraphs are 
ineligible to receive visas and ineligible to be admitted to 
the United States:
            (1) * * *
            (2) Criminal and related grounds.--
                    (A) Conviction of certain crimes.--
                            (i) In general.--Except as provided 
                        in clause (ii), any alien convicted of, 
                        or who admits having committed, or who 
                        admits committing acts which constitute 
                        the essential elements of--
                                    (I) a crime involving moral 
                                turpitude (other than a purely 
                                political offense) or an 
                                attempt or conspiracy to commit 
                                such a crime, [or]
                                    (II) a violation of (or a 
                                conspiracy or attempt to 
                                violate) any law or regulation 
                                of a State, the United States, 
                                or a foreign country relating 
                                to a controlled substance (as 
                                defined in section 102 of the 
                                Controlled Substances Act (21 
                                U.S.C. 802)), or
                                    (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,

           *       *       *       *       *       *       *

                    (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.
                    (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.
            (3) Security and related grounds.--
                    (A) * * *
                    (B) Terrorist activities.--
                            (i) * * *
                            (ii) Exception.--[Subclause (VII)] 
                        Subclause (IX) of clause (i) does not 
                        apply to a spouse or child--
                                    (I) * * *

           *       *       *       *       *       *       *

            (6) Illegal entrants and immigration violators.--
                    (A) * * *

           *       *       *       *       *       *       *

                    (C) Misrepresentation.--
                            (i) * * *
                            (ii) Falsely claiming citizenship 
                        or nationality.--
                                    (I) In general.--Any alien 
                                who falsely represents, or has 
                                falsely represented, himself or 
                                herself to be a citizen or 
                                national of the United States 
                                for any purpose or benefit 
                                under this Act (including 
                                section 274A) or any other 
                                Federal or State law is 
                                inadmissible.
                                    (II) Exception.--In the 
                                case of an alien making a 
                                representation described in 
                                subclause (I), if each natural 
                                parent of the alien (or, in the 
                                case of an adopted alien, each 
                                adoptive parent of the alien) 
                                is or was a citizen or national 
                                (whether by birth or 
                                naturalization), the alien 
                                permanently resided in the 
                                United States prior to 
                                attaining the age of 16, and 
                                the alien reasonably believed 
                                at the time of making such 
                                representation that he or she 
                                was a citizen or national, the 
                                alien shall not be considered 
                                to be inadmissible under any 
                                provision of this subsection 
                                based on such representation.

           *       *       *       *       *       *       *

            (9) Aliens previously removed.--
                    (A) Certain aliens previously removed.--
                            (i) Arriving aliens.--Any alien who 
                        has been ordered removed under section 
                        235(b)(1) or at the end of proceedings 
                        under section 240 initiated upon the 
                        alien's arrival in the United States 
                        and who again seeks admission [within 5 
                        years of] before, or within 5 years of, 
                        the date of such removal (or within 20 
                        years in the case of a second or 
                        subsequent removal or at any time in 
                        the case of an alien convicted of an 
                        aggravated felony) is inadmissible.
                            (ii) Other aliens.--Any alien not 
                        described in clause (i) who--
                                    (I) has been ordered 
                                removed under section 240 or 
                                any other provision of law, or
                                    (II) departed the United 
                                States while an order of 
                                removal was outstanding,
                        and who seeks admission [within 10 
                        years of] before, or within 10 years 
                        of, the date of such alien's departure 
                        or removal (or within 20 years of such 
                        date in the case of a second or 
                        subsequent removal or at any time in 
                        the case of an alien convicted of an 
                        aggravated felony) is inadmissible.

           *       *       *       *       *       *       *

      (h) [The Attorney General may, in his discretion, waive 
the application of subparagraphs (A)(i)(I), (B), (D), and (E) 
of subsection (a)(2)] 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) and subparagraph (A)(i)(II) of such 
subsection insofar as it relates to a single offense of simple 
possession of 30 grams or less of marijuana if--
            (1)(A) in the case of any immigrant it is 
        established to the satisfaction of the Attorney General 
        or the Secretary that--
                    (i) * * *

           *       *       *       *       *       *       *

            (B) in the case of an immigrant who is the spouse, 
        parent, son, or daughter of a citizen of the United 
        States or an alien lawfully admitted for permanent 
        residence if it is established to the satisfaction of 
        the Attorney General or the Secretary that the alien's 
        denial of admission would result in extreme hardship to 
        the United States citizen or lawfully resident spouse, 
        parent, son, or daughter of such alien; or

           *       *       *       *       *       *       *

            (2) the [Attorney General, in his discretion,] 
        Attorney General or the Secretary of Homeland Security, 
        in the discretion of the Attorney General or such 
        Secretary, and pursuant to such terms, conditions and 
        procedures [as he] as the Attorney General or the 
        Secretary may by regulations prescribe, has consented 
        to the alien's applying or reapplying for a visa, for 
        admission to the United States, or adjustment of 
        status.
No waiver shall be provided under this subsection in the case 
of an alien who has been convicted of (or who has admitted 
committing acts that constitute) murder or [criminal acts 
involving torture] criminal acts involving torture, or an 
aggravated felony, or an attempt or conspiracy to commit murder 
or a criminal act involving torture. No waiver shall be granted 
under this subsection in the case of an alien who has 
previously been admitted to the United States as an alien 
lawfully admitted for permanent residence [if either since the 
date of such admission the alien has been convicted of an 
aggravated felony or the alien] if since the date of such 
admission the alien has not lawfully resided continuously in 
the United States for a period of not less than 7 years 
immediately preceding the date of initiation of proceedings to 
remove the alien from the United States. No court shall have 
jurisdiction to review a decision of the Attorney General or 
the Secretary to grant or deny a waiver under this subsection.

           *       *       *       *       *       *       *


  conditional permanent resident status for certain alien spouses and 
                           sons and daughters

    Sec. 216. (a) * * *

           *       *       *       *       *       *       *

    (e) Treatment of Period for Purposes of Naturalization.--
For purposes of title III, in the case of an alien who is in 
the United States as a lawful permanent resident on a 
conditional basis under this section, the alien shall be 
considered to have been admitted as an alien lawfully admitted 
for permanent residence and to be in the United States as an 
alien lawfully admitted to the United States for permanent 
residence, if the alien has had the conditional basis removed 
under this section.

           *       *       *       *       *       *       *


conditional permanent resident status for certain alien entrepreneurs, 
                         spouses, and children

    Sec. 216A. (a) * * *

           *       *       *       *       *       *       *

    (e) Treatment of Period for Purposes of Naturalization.--
For purposes of title III, in the case of an alien who is in 
the United States as a lawful permanent resident on a 
conditional basis under this section, the alien shall be 
considered to have been admitted as an alien lawfully admitted 
for permanent residence and to be in the United States as an 
alien lawfully admitted to the United States for permanent 
residence, if the alien has had the conditional basis removed 
under this section.

           *       *       *       *       *       *       *


                  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.

           *       *       *       *       *       *       *


                 Chapter 3--Issuance of Entry Documents

                           issuance of visas

    Sec. 221. (a)(1) * * *

           *       *       *       *       *       *       *

    (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.

           *       *       *       *       *       *       *

    (i) After the issuance of a visa or other documentation to 
any alien, the consular officer or the Secretary of State may 
at any time, in his discretion, revoke such visa or other 
documentation. Notice of such revocation shall be communicated 
to the Attorney General, and such revocation shall invalidate 
the visa or other documentation from the date of issuance: 
Provided, That carriers or transportation companies, and 
masters, commanding officers, agents, owners, charterers, or 
consignees, shall not be penalized under section 273(b) for 
action taken in reliance on such visas or other documentation, 
unless they received due notice of such revocation prior to the 
alien's embarkation. [There shall be no means of judicial 
review (including review pursuant to section 2241 of title 28, 
United States Code, or any other habeas corpus provision, and 
sections 1361 and 1651 of such title) of a revocation under 
this subsection, except in the context of a removal proceeding 
if such revocation provides the sole ground for removal under 
section 237(a)(1)(B).] 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.

           *       *       *       *       *       *       *


   Chapter 4--Inspection, Apprehension, Examination, Exclusion, and 
Removal

           *       *       *       *       *       *       *


 INSPECTION BY IMMIGRATION OFFICERS; EXPEDITED REMOVAL OF INADMISSIBLE 
                 ARRIVING ALIENS; REFERRAL FOR HEARING

    Sec. 235. (a) * * *
    (b) Inspection of Applicants for Admission.--
            (1) Inspection of aliens arriving in the united 
        states and certain other aliens who have not been 
        admitted or paroled.--
                    (A) Screening.--
                            (i) * * *

           *       *       *       *       *       *       *

                            (iii) Application to certain other 
                        aliens.--
                                    (I) In general.--The 
                                [Attorney General] Secretary of 
                                Homeland Security may apply 
                                clauses (i) and (ii) of this 
                                subparagraph to any or all 
                                aliens described in subclause 
                                (II) as designated by the 
                                [Attorney General] Secretary of 
                                Homeland Security. Such 
                                designation shall be in the 
                                sole and unreviewable 
                                discretion of the [Attorney 
                                General] Secretary of Homeland 
                                Security and may be modified at 
                                any time.

           *       *       *       *       *       *       *

                                    (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.

           *       *       *       *       *       *       *

                    (F) Exception.--Subparagraph (A) shall not 
                apply to an 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 and [who arrives by 
                aircraft at a port of entry], 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.

           *       *       *       *       *       *       *


                  APPREHENSION AND DETENTION OF ALIENS

    Sec. 236. (a) * * *

           *       *       *       *       *       *       *

    (c) Detention of Criminal Aliens.--
            (1) Custody.--The Attorney General shall take into 
        custody any alien who--
                    (A) * * *

           *       *       *       *       *       *       *

                    (D) is inadmissible under section 
                212(a)(3)(B) or 212(a)(2)(M) or deportable 
                under section 237(a)(2)(F) or 237(a)(4)(B),

           *       *       *       *       *       *       *


                  GENERAL CLASSES OF DEPORTABLE ALIENS

      Sec. 237. (a) Classes of Deportable Aliens.--Any alien 
(including an alien crewman) in and admitted to the United 
States shall, upon the order of the Attorney General, be 
removed if the alien is within one or more of the following 
classes of deportable aliens:
            (1) * * *
            (2) Criminal offenses.--
                    (A) * * *

           *       *       *       *       *       *       *

                    (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).
                    (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.
            (3) Failure to register and falsification of 
        documents.--
                    (A) * * *
                    (B) Failure to register or falsification of 
                documents.--Any alien who at any time has been 
                convicted--
                            (i) * * *
                            (ii) of a violation of, or an 
                        attempt or a conspiracy to violate, any 
                        provision of the Foreign Agents 
                        Registration Act of 1938 (22 U.S.C. 611 
                        et seq.), [or]
                            (iii) of a violation of, or an 
                        attempt or a conspiracy to violate, 
                        section 1546 of title 18, United States 
                        Code (relating to fraud and misuse of 
                        visas, permits, and other entry 
                        documents), or
                            (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,

           *       *       *       *       *       *       *


EXPEDITED REMOVAL OF ALIENS CONVICTED OF COMMITTING AGGRAVATED FELONIES

    Sec. 238. (a) * * *
    (b) Removal of Aliens Who Are Not Permanent Residents.--
            (1) The [Attorney General] Secretary of Homeland 
        Security in the exercise of discretion may, in the case 
        of an alien described in paragraph (2), determine the 
        deportability of such alien under section 
        237(a)(2)(A)(iii) (relating to conviction of an 
        aggravated felony) and issue an order of removal 
        pursuant to the procedures [set forth in this 
        subsection or] set forth in this subsection, in lieu of 
        removal proceedings under section 240.

           *       *       *       *       *       *       *

            (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.
            [(3)] (4) The [Attorney General] Secretary of 
        Homeland Security may not execute any order described 
        in [paragraph (1) until 14 calendar days] paragraph (1) 
        or (3) until 7 calendar days have passed from the date 
        that such order was issued, unless waived by the alien, 
        in order that the alien has an opportunity to apply for 
        judicial review under section 242.
            [(4)] (5) Proceedings before the [Attorney General] 
        Secretary of Homeland Security under this subsection 
        shall be in accordance with such regulations as the 
        [Attorney General] Secretary of Homeland Security shall 
        prescribe. The [Attorney General] Secretary of Homeland 
        Security shall provide that--
                    (A) * * *

           *       *       *       *       *       *       *

            [(5)] (6) No alien [described in this section] 
        described in paragraph (1) or (2) shall be eligible for 
        any relief from removal that [the Attorney General may 
        grant in the Attorney General's discretion] the 
        Secretary of Homeland Security or the Attorney General 
        may grant, in the discretion of the Secretary or 
        Attorney General, in any proceeding.

           *       *       *       *       *       *       *


             CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS

    Sec. 240A. (a) * * *

           *       *       *       *       *       *       *

    (c) Aliens Ineligible for Relief.--The provisions of 
subsections (a) and (b)(1) shall not apply to any of the 
following aliens:
            (1) * * *

           *       *       *       *       *       *       *

            (4) An alien who is [inadmissible under] described 
        in section 212(a)(3) or [deportable under] described in 
        section 237(a)(4).

           *       *       *       *       *       *       *


                          VOLUNTARY DEPARTURE

    Sec. 240B. (a) Certain Conditions.--
            [(1) In general.--The Attorney General 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 or prior 
        to the completion of such proceedings, if the alien is 
        not deportable under section 237(a)(2)(A)(iii) or 
        section 237(a)(4)(B).]
            (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).
            (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).
            [(2)] (3) Period.--
                    [(A) In general.--Subject to subparagraph 
                (B), permission to depart voluntarily under 
                this subsection shall not be valid for a period 
                exceeding 120 days.]
                    (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.
                    (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.
                    [(B)] (C) Three year pilot program 
                waiver.--During the period October 1, 2000, 
                through September 30, 2003, and subject to 
                [subparagraphs (C) and (D)(ii)] subparagraphs 
                (D) and (E)(ii), the Attorney General may, in 
                the discretion of the Attorney General for 
                humanitarian purposes, waive application of 
                subparagraph (A) in the case of an alien--
                            (i) * * *

           *       *       *       *       *       *       *

                    [(C)] (D) Waiver limitations.--
                            (i) Waivers under [subparagraph 
                        (B)] subparagraph (C) may be granted 
                        only upon a request submitted by a 
                        Service district office to Service 
                        headquarters.
                            (ii) Not more than 300 waivers may 
                        be granted for any fiscal year for a 
                        principal alien under [subparagraph 
                        (B)] subparagraph (C)(i).
                            (iii)(I) Except as provided in 
                        subclause (II), in the case of each 
                        principal alien described in 
                        [subparagraph (B)] subparagraph (C)(i) 
                        not more than one adult may be granted 
                        a waiver under [subparagraph (B)] 
                        subparagraph (C)(ii).
                            (II) Not more than two adults may 
                        be granted a waiver under [subparagraph 
                        (B)] subparagraph (C)(ii) in a case in 
                        which--
                                    (aa) the principal alien 
                                described in [subparagraph (B)] 
                                subparagraph (C)(i) is a 
                                dependent under the age of 18; 
                                or
                                    (bb) one such adult is age 
                                55 or older or is physically 
                                handicapped.
                    [(D)] (E) Report to congress; suspension of 
                waiver authority.--
                            (i) Not later than March 30 of each 
                        year, the Commissioner shall submit to 
                        the Congress an annual report regarding 
                        all waivers granted under [subparagraph 
                        (B)] subparagraph (C) during the 
                        preceding fiscal year.
                            (ii) Notwithstanding any other 
                        provision of law, the authority of the 
                        Attorney General under [subparagraph 
                        (B)] subparagraph (C) shall be 
                        suspended during any period in which an 
                        annual report under clause (i) is past 
                        due and has not been submitted.
            [(3) Bond.--The Attorney General may require an 
        alien permitted to depart voluntarily under this 
        subsection to post a voluntary departure bond, to be 
        surrendered upon proof that the alien has departed the 
        United States within the time specified.]
            (4) Treatment of aliens arriving in the united 
        states.--In the case of an alien who is arriving in the 
        United States and with respect to whom proceedings 
        under section 240 are (or would otherwise be) initiated 
        at the time of such alien's arrival, [paragraph (1)] 
        paragraphs (1) and (2) shall not apply. Nothing in this 
        paragraph shall be construed as preventing such an 
        alien from withdrawing the application for admission in 
        accordance with section 235(a)(4).
    (b) At Conclusion of Proceedings.--
            (1) In general.--The Attorney General may permit an 
        alien voluntarily to depart the United States at the 
        alien's own expense if, at the conclusion of a 
        proceeding under section 240, the immigration judge 
        enters an order granting voluntary departure in lieu of 
        removal and finds that--
                    (A)  * * *

           *       *       *       *       *       *       *

                    (C) the alien is not [deportable under] 
                described in section 237(a)(2)(A)(iii) or 
                section 237(a)(4); and

           *       *       *       *       *       *       *

            (2) Period.--Permission to depart voluntarily under 
        this subsection shall not be valid for a period 
        exceeding [60] 45 days.

           *       *       *       *       *       *       *

    [(c) Aliens Not Eligible.--The Attorney General shall not 
permit an alien to depart voluntarily under this section if the 
alien was previously permitted to so depart after having been 
found inadmissible under section 212(a)(6)(A).]
    (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) 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.
    [(d) Civil Penalty for Failure to Depart.--If an alien is 
permitted to depart voluntarily under this section and fails 
voluntarily to depart the United States within the time period 
specified, the alien shall be subject to a civil penalty of not 
less than $1,000 and not more than $5,000, and be ineligible 
for a period of 10 years for any further relief under this 
section and sections 240A, 245, 248, and 249. The order 
permitting the alien to depart voluntarily shall inform the 
alien of the penalties under this subsection.
    [(e) Additional Conditions.--The Attorney General may by 
regulation limit eligibility for voluntary departure under this 
section for any class or classes of aliens. No court may review 
any regulation issued under this subsection.]
    (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.
    (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.
    (f) Judicial Review.--No court shall have jurisdiction over 
an appeal from denial of a request for an order of voluntary 
departure under subsection (b), nor shall any court order a 
stay of an alien's removal pending consideration of any claim 
with respect to voluntary departure. 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.

            DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED

    Sec. 241. (a) Detention, Release, and Removal of Aliens 
Ordered Removed.--
            (1) Removal period.--
                    (A) In general.--Except as otherwise 
                provided in this section, when an alien is 
                ordered removed, the [Attorney General] 
                Secretary of Homeland Security shall remove the 
                alien from the United States within a period of 
                90 days (in this section referred to as the 
                ``removal period'').
                    (B) Beginning of period.--The removal 
                period begins on the latest of the following:
                            (i) * * *
                            [(ii) If the removal order is 
                        judicially reviewed and if a court 
                        orders a stay of the removal of the 
                        alien, the date of the court's final 
                        order.]
                            (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.

           *       *       *       *       *       *       *

                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.
                    [(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 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.]
                    (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.
            (2) Detention.--During the removal period, the 
        [Attorney General] Secretary of Homeland Security shall 
        detain the alien. Under no circumstance during the 
        removal period shall the [Attorney General] Secretary 
        of Homeland Security release an alien who has been 
        found inadmissible under section 212(a)(2) or 
        212(a)(3)(B) or deportable under section 237(a)(2) or 
        237(a)(4)(B). 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.
            (3) Supervision after 90-day period.--If the alien 
        does not leave or is not removed within the removal 
        period, the alien, pending removal, shall be subject to 
        supervision under regulations prescribed by the 
        [Attorney General] Secretary of Homeland Security. The 
        regulations shall include provisions requiring the 
        alien--
                    (A) * * *

           *       *       *       *       *       *       *

                    (C) to give information under oath about 
                the alien's nationality, circumstances, habits, 
                associations, and activities, and other 
                information the [Attorney General] Secretary of 
                Homeland Security considers appropriate; and
                    [(D) to obey reasonable written 
                restrictions on the alien's conduct or 
                activities that the Attorney General prescribes 
                for the alien.]
                    (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.
            (4) Aliens imprisoned, arrested, or on parole, 
        supervised release, or probation.--
                    (A) In general.--Except as provided in 
                section 343(a) of the Public Health Service Act 
                (42 U.S.C. 259(a)) and paragraph (2), the 
                [Attorney General] Secretary of Homeland 
                Security may not remove an alien who is 
                sentenced to imprisonment until the alien is 
                released from imprisonment. Parole, supervised 
                release, probation, or possibility of arrest or 
                further imprisonment is not a reason to defer 
                removal.
                    (B) Exception for removal of nonviolent 
                offenders prior to completion of sentence of 
                imprisonment.--The [Attorney General] Secretary 
                of Homeland Security is authorized to remove an 
                alien in accordance with applicable procedures 
                under this Act before the alien has completed a 
                sentence of imprisonment--
                            (i) in the case of an alien in the 
                        custody of the [Attorney General] 
                        Secretary of Homeland Security, if the 
                        [Attorney General] Secretary of 
                        Homeland Security determines that (I) 
                        the alien is confined pursuant to a 
                        final conviction for a nonviolent 
                        offense (other than an offense related 
                        to smuggling or harboring of aliens or 
                        an offense described in section 
                        101(a)(43)(B), (C), (E), (I), or (L) 
                        and (II) the removal of the alien is 
                        appropriate and in the best interest of 
                        the United States; or
                            (ii) in the case of an alien in the 
                        custody of a State (or a political 
                        subdivision of a State), if the chief 
                        State official exercising authority 
                        with respect to the incarceration of 
                        the alien determines that (I) the alien 
                        is confined pursuant to a final 
                        conviction for a nonviolent offense 
                        (other than an offense described in 
                        section 101(a)(43)(C) or (E)), (II) the 
                        removal is appropriate and in the best 
                        interest of the State, and (III) 
                        submits a written request to the 
                        [Attorney General] Secretary of 
                        Homeland Security that such alien be so 
                        removed.

           *       *       *       *       *       *       *

            [(5) Reinstatement of removal orders against aliens 
        illegally reentering.--If the Attorney General finds 
        that an alien has reentered the United States illegally 
        after having been removed or having departed 
        voluntarily, under an order of removal, the prior order 
        of removal is reinstated from its original date and is 
        not subject to being reopened or reviewed, the alien is 
        not eligible and may not apply for any relief under 
        this Act, and the alien shall be removed under the 
        prior order at any time after the reentry.]
            (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.
            (6) Inadmissible or criminal aliens.--An alien 
        ordered removed who is inadmissible under section 212, 
        removable under section 237(a)(1)(C), 237(a)(2), or 
        237(a)(4) or who has been determined by the [Attorney 
        General] Secretary of Homeland Security to be a risk to 
        the community or unlikely to comply with the order of 
        removal, may be detained beyond the [removal period 
        and, if released,] 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 shall be subject to 
        the terms of supervision in paragraph (3).
            (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.
            [(7)] (10) Employment authorization.--No alien 
        ordered removed shall be eligible to receive 
        authorization to be employed in the United States 
        unless the [Attorney General] Secretary of Homeland 
        Security makes a specific finding that--
                    (A) * * *

           *       *       *       *       *       *       *

    (b) Countries to Which Aliens May Be Removed.--
            (1)  * * *

           *       *       *       *       *       *       *

            (3) Restriction on removal to a country where 
        alien's life or freedom would be threatened.--
                    (A) In general.--Notwithstanding paragraphs 
                (1) and (2), the [Attorney General] Secretary 
                of Homeland Security may not remove an alien to 
                a country if the Attorney General or the 
                Secretary decides that the alien's life or 
                freedom would be threatened in that country 
                because of the alien's race, religion, 
                nationality, membership in a particular social 
                group, or political opinion. 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.
                    (B) Exception.--Subparagraph (A) does not 
                apply to an alien who is described in section 
                212(a)(2)(M)(i) or section 237(a)(2)(F)(i) or 
                who is deportable under section 237(a)(4)(D) or 
                if the Attorney General or the Secretary of 
                Homeland Security decides that--
                            (i) * * *

           *       *       *       *       *       *       *

                            (iii) there are serious reasons to 
                        believe that the alien committed a 
                        serious nonpolitical crime outside the 
                        United States before the alien arrived 
                        in the United States; [or]
                            (iv) there are reasonable grounds 
                        to believe that the alien is a danger 
                        to the security of the United 
                        States[.]; or
                            (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.
                For purposes of clause (ii), an alien who has 
                been convicted of an aggravated felony (or 
                felonies) for which the alien has been 
                sentenced to an aggregate term of imprisonment 
                of at least 5 years shall be considered to have 
                committed a particularly serious crime. The 
                previous sentence shall not preclude the 
                Attorney General or the Secretary of Homeland 
                Security from determining that, notwithstanding 
                the length of sentence imposed, an alien has 
                been convicted of a particularly serious crime. 
                [For purposes of clause (iv), an alien who is 
                described in section 237(a)(4)(B) shall be 
                considered to be an alien with respect to whom 
                there are reasonable grounds for regarding as a 
                danger to the security of the United States.]
                    (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)] For purposes of 
                this paragraph, 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).

           *       *       *       *       *       *       *

    (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.

                  JUDICIAL REVIEW OF ORDERS OF REMOVAL

    Sec. 242. (a)  * * *

           *       *       *       *       *       *       *

    (b) Requirements for Review of Orders of Removal.--With 
respect to review of an order of removal under subsection 
(a)(1), the following requirements apply:
            (1)  * * *

           *       *       *       *       *       *       *

            (3) Service.--
                    (A)  * * *

           *       *       *       *       *       *       *

                    [(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, and may serve and file a 
                reply brief not later than 14 days after 
                service of the brief of the Attorney General, 
                and the court may not extend these deadlines 
                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.]
                    (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.
                    (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.

           *       *       *       *       *       *       *

    (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).

                      PENALTIES RELATED TO REMOVAL

    Sec. 243. (a) Penalty for Failure To Depart.--
            (1) In general.--Any alien against whom a final 
        order of removal is outstanding by reason of being a 
        member of any of the classes described in section 
        237(a) or 212(a), who--
                    (A) * * *

           *       *       *       *       *       *       *

        shall be fined under title 18, United States Code, or 
        [imprisoned not more than four years] imprisoned for 
        not less than six months or more than five years (or 10 
        years if the alien is a member of any of the classes 
        described in paragraph (1)(E), (2), (3), or (4) of 
        section 237(a)), or both.

           *       *       *       *       *       *       *

    (b) Willful Failure To Comply with Terms of Release Under 
Supervision.--An alien who shall willfully fail to comply with 
regulations or requirements issued pursuant to section 
241(a)(3) or knowingly give false information in response to an 
inquiry under such section shall be fined [not more than 
$1,000] under title 18, United States Code or imprisoned [for 
not more than one year] 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), or both.

           *       *       *       *       *       *       *

    [(d) Discontinuing Granting Visas to Nationals of Country 
Denying or Delaying Accepting Alien.--On being notified by the 
Attorney General that the government of a foreign country 
denies or unreasonably delays accepting an alien who is a 
citizen, subject, national, or resident of that country after 
the Attorney General asks whether the government will accept 
the alien under this section, the Secretary of State shall 
order consular officers in that foreign country to discontinue 
granting immigrant visas or nonimmigrant visas, or both, to 
citizens, subjects, nationals, and residents of that country 
until the Attorney General notifies the Secretary that the 
country has accepted the alien.]
    (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.

                       temporary protected status

    Sec. 244. (a)  * * *

           *       *       *       *       *       *       *

    (c) Aliens Eligible for Temporary Protected Status.--
            (1)  * * *
            (2) Eligibility standards.--
                    (A)  * * *

           *       *       *       *       *       *       *

                    (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).

           *       *       *       *       *       *       *


  record of admission for permanent residence in the case of certain 
 aliens who entered the united states prior to july 1, 1924 or january 
                                1, 1972

    Sec. 249. A record of lawful admission for permanent 
residence may, in the discretion of the Attorney General and 
under such regulations as he may prescribe, be made in the case 
of any alien, as of the date of the approval of his application 
or, if entry occurred prior to July 1, 1924, as of the date of 
such entry, if no such record is otherwise available and such 
alien shall satisfy the Attorney General that he is not 
[inadmissible under] described in section 212(a)(3)(E) or under 
section 212(a) insofar as it relates to criminals, procurers 
and other immoral persons, subversives, violators of the 
narcotic laws or smugglers of aliens, and he establishes that 
he--
            (a) * * *

           *       *       *       *       *       *       *

            (d) is not ineligible to citizenship and is not 
        [deportable under] described in section 237(a)(4)(B).

           *       *       *       *       *       *       *


               [bringing in and harboring certain aliens

    [Sec. 274. (a) Criminal Penalties.--(1)(A) Any person who--
            [(i) knowing that a person is an alien, brings to 
        or attempts to bring to the United States in any manner 
        whatsoever such person at a place other than a 
        designated port of entry or place other than as 
        designated by the Commissioner, regardless of whether 
        such alien has received prior official authorization to 
        come to, enter, or reside in the United States and 
        regardless of any future official action which may be 
        taken with respect to such alien;
            [(ii) knowing or in reckless disregard of the fact 
        that an alien has come to, entered, or remains in the 
        United States in violation of law, transports, or moves 
        or attempts to transport or move such alien within the 
        United States by means of transportation or otherwise, 
        in furtherance of such violation of law;
            [(iii) knowing or in reckless disregard of the fact 
        that an alien has come to, entered, or remains in the 
        United States in violation of law, conceals, harbors, 
        or shields from detection, or attempts to conceal, 
        harbor, or shield from detection, such alien in any 
        place, including any building or any means of 
        transportation;
            [(iv) encourages or induces an alien to come to, 
        enter, or reside in the United States, knowing or in 
        reckless disregard of the fact that such coming to, 
        entry, or residence is or will be in violation of law; 
        or
            [(v)(I) engages in any conspiracy to commit any of 
        the preceding acts, or
            [(II) aids or abets the commission of any of the 
        preceding acts,
shall be punished as provided in subparagraph (B).
    [(B) A person who violates subparagraph (A) shall, for each 
alien in respect to whom such a violation occurs--
            [(i) in the case of a violation of subparagraph 
        (A)(i) or (v)(I) or in the case of a violation of 
        subparagraph (A)(ii), (iii), or (iv) in which the 
        offense was done for the purpose of commercial 
        advantage or private financial gain, be fined under 
        title 18, United States Code, imprisoned not more than 
        10 years, or both;
            [(ii) in the case of a violation of subparagraph 
        (A) (ii), (iii), (iv), or (v)(II) be fined under title 
        18, United States Code, imprisoned not more than 5 
        years, or both;
            [(iii) in the case of a violation of subparagraph 
        (A) (i), (ii), (iii), (iv), or (v) during and in 
        relation to which the person causes serious bodily 
        injury (as defined in section 1365 of title 18, United 
        States Code) to, or places in jeopardy the life of, any 
        person, be fined under title 18, United States Code, 
        imprisoned not more than 20 years, or both; and
            [(iv) in the case of a violation of subparagraph 
        (A) (i), (ii), (iii), (iv), or (v) resulting in the 
        death of any person, be punished by death or imprisoned 
        for any term of years or for life, fined under title 
        18, United States Code, or both.
    [(2) Any person who, knowing or in reckless disregard of 
the fact that an alien has not received prior official 
authorization to come to, enter, or reside in the United 
States, brings to or attempts to bring to the United States in 
any manner whatsoever, such alien, regardless of any official 
action which may later be taken with respect to such alien 
shall, for each alien in respect to whom a violation of this 
paragraph occurs--
            [(A) be fined in accordance with title 18, United 
        States Code, or imprisoned not more than one year, or 
        both; or
            [(B) in the case of--
                    [(i) an offense committed with the intent 
                or with reason to believe that the alien 
                unlawfully brought into the United States will 
                commit an offense against the United States or 
                any State punishable by imprisonment for more 
                than 1 year,
                    [(ii) an offense done for the purpose of 
                commercial advantage or private financial gain, 
                or
                    [(iii) an offense in which the alien is not 
                upon arrival immediately brought and presented 
                to an appropriate immigration officer at a 
                designated port of entry,
        be fined under title 18, United States Code, and shall 
        be imprisoned, in the case of a first or second 
        violation of subparagraph (B)(iii), not more than 10 
        years, in the case of a first or second violation of 
        subparagraph (B)(i) or (B)(ii), not less than 3 nor 
        more than 10 years, and for any other violation, not 
        less than 5 nor more than 15 years.
    [(3)(A) 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 
subparagraph (B) shall be fined under title 18, United States 
Code, or imprisoned for not more than 5 years, or both.
    [(B) An alien described in this subparagraph is an alien 
who--
            [(i) is an unauthorized alien (as defined in 
        section 274A(h)(3)), and
            [(ii) has been brought into the United States in 
        violation of this subsection.
    [(4) In the case of a person who has brought aliens into 
the United States in violation of this subsection, the sentence 
otherwise provided for may be increased by up to 10 years if--
            [(A) the offense was part of an ongoing commercial 
        organization or enterprise;
            [(B) aliens were transported in groups of 10 or 
        more; and
            [(C)(i) aliens were transported in a manner that 
        endangered their lives; or
            [(ii) the aliens presented a life-threatening 
        health risk to people in the United States.
    [(b) Seizure and Forfeiture.--
            [(1) In general.--Any conveyance, including any 
        vessel, vehicle, or aircraft, that has been or is being 
        used in the commission of a violation of subsection 
        (a), the gross proceeds of such violation, and any 
        property traceable to such conveyance or proceeds, 
        shall be seized and 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 Attorney 
        General.
            [(3) Prima facie evidence in determinations of 
        violations.--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 
        alleged violation had not received prior official 
        authorization to come to, enter, or reside in the 
        United States or that such alien had come to, entered, 
        or remained in the United States in violation of law:
                    [(A) Records of any judicial or 
                administrative proceeding in which that alien's 
                status was an issue and in which it was 
                determined that the alien had not received 
                prior official authorization to come to, enter, 
                or reside in the United States or that such 
                alien had come to, entered, or remained in the 
                United States in violation of law.
                    [(B) Official records of the Service or of 
                the Department of State showing that the alien 
                had not received prior official authorization 
                to come to, enter, or reside in the United 
                States or that such alien had come to, entered, 
                or remained in the United States in violation 
                of law.
                    [(C) Testimony, by an immigration officer 
                having personal knowledge of the facts 
                concerning that alien's status, that the alien 
                had not received prior official authorization 
                to come to, enter, or reside in the United 
                States or that such alien had come to, entered, 
                or remained in the United States in violation 
                of law.
    [(c) No officer or person shall have authority to make any 
arrest for a violation of any provision of this section except 
officers and employees of the Service designated by the 
Attorney General, either individually or as a member of a 
class, and all other officers whose duty it is to enforce 
criminal laws.
    [(d) 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 unable to testify, may be admitted into 
evidence in an action brought for that violation if the witness 
was available for cross examination and the deposition 
otherwise complies with the Federal Rules of Evidence.
    [(e) Outreach Program.--The Secretary of Homeland Security, 
in consultation with the Attorney General and the Secretary of 
State, as appropriate, shall develop and implement an outreach 
program to educate the public in the United States and abroad 
about the penalties for bringing in and harboring aliens in 
violation of this section.]

                  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.

                     unlawful employment of aliens

    Sec. 274A. (a) Making Employment of Unauthorized Aliens 
Unlawful.--
            (1) In general.--It is unlawful for a person or 
        other entity--
                    (A) to hire, or to recruit or refer [for a 
                fee], for employment in the United States an 
                alien knowing the alien is an unauthorized 
                alien (as defined in subsection (h)(3)) with 
                respect to such employment, or
                    [(B)(i) to hire for employment in the 
                United States an individual without complying 
                with the requirements of subsection (b) or (ii) 
                if the person or entity is an agricultural 
                association, agricultural employer, or farm 
                labor contractor (as defined in section 3 of 
                the Migrant and Seasonal Agricultural Worker 
                Protection Act), to hire, or to recruit or 
                refer for a fee, for employment in the United 
                States an individual without complying with the 
                requirements of subsection (b).]
                    (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).
            (2) Continuing employment.--It is unlawful for a 
        person or other entity, [after hiring an alien for 
        employment in accordance with paragraph (1),] after 
        complying with paragraph (1), to continue to employ the 
        alien in the United States knowing the alien is (or has 
        become) an unauthorized alien with respect to such 
        employment.
            (3) Defense.--(A) A person or entity that 
        establishes that it has complied in good faith with the 
        requirements of subsection (b) with respect to the 
        [hiring,] hiring, employing, recruiting, or referral 
        for employment of an alien in the United States has 
        established an affirmative defense that the person or 
        entity has not violated paragraph (1)(A) with respect 
        to such [hiring,] hiring, employing, recruiting, or 
        referral.
            (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, 
                        employing, 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.
    (b) Employment Verification System.--The requirements 
referred to in paragraphs (1)(B) and (3) of subsection (a) are, 
in the case of a person or other entity hiring, recruiting, or 
referring an individual for employment in the United States, 
the requirements specified in the following three paragraphs:
            (1) Attestation after examination of 
        documentation.--
                    [(A) In general.--The person or entity must 
                attest, under penalty of perjury and on a form 
                designated or established by the Attorney 
                General by regulation, that it has verified 
                that the individual is not an unauthorized 
                alien by examining--
                            [(i) a document described in 
                        subparagraph (B), or
                            [(ii) 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. 
                If an individual provides a document or 
                combination of documents that reasonably 
                appears on its face to be genuine and that is 
                sufficient to meet the requirements of 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 such another document.]
                    (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.

           *       *       *       *       *       *       *

                    (D) Documents establishing identity of 
                individual.--A document described in this 
                subparagraph is an individual's--
                            (i) driver's license or similar 
                        document issued for the purpose of 
                        identification by a State, if it 
                        contains a photograph of the individual 
                        [or such other personal identifying 
                        information relating to the individual 
                        as the Attorney General finds, by 
                        regulation, sufficient for purposes of 
                        this section]; or
                            (ii) in the case of individuals 
                        under 16 years of age or in a State 
                        which does not provide for issuance of 
                        an identification document (other than 
                        a driver's license) referred to in 
                        clause (i), documentation of personal 
                        identity of such other type as the 
                        Attorney General finds, by regulation, 
                        provides a reliable means of 
                        identification and that contains a 
                        photograph of the individual.

           *       *       *       *       *       *       *

            (2) Individual attestation of employment 
        authorization.--The individual must attest, under 
        penalty of perjury on the form designated or 
        established for purposes of paragraph (1), that the 
        individual is a citizen or national of the United 
        States, an alien lawfully admitted for permanent 
        residence, or an alien who is authorized under this Act 
        or by the Attorney General to be hired, recruited, or 
        referred for such employment. 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.
            [(3) Retention of verification form.--After 
        completion of such form in accordance with paragraphs 
        (1) and (2), the person or entity must retain the form 
        and make it available for inspection by officers of the 
        Service, 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 and ending--
                    [(A) in the case of the recruiting or 
                referral for a fee (without hiring) of an 
                individual, three years after the date of the 
                recruiting or referral, and
                    [(B) in the case of the hiring of an 
                individual--
                            [(i) three years after the date of 
                        such hiring, or
                            [(ii) one year after the date the 
                        individual's employment is terminated,
                whichever is later.]
            (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).

           *       *       *       *       *       *       *

            (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.
            (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.

           *       *       *       *       *       *       *

    [(d) Evaluation and Changes in Employment Verification 
System.--
            [(1) Presidential monitoring and improvements in 
        system.--
                    [(A) Monitoring.--The President shall 
                provide for the monitoring and evaluation of 
                the degree to which the employment verification 
                system established under subsection (b) 
                provides a secure system to determine 
                employment eligibility in the United States and 
                shall examine the suitability of existing 
                Federal and State identification systems for 
                use for this purpose.
                    [(B) Improvements to establish secure 
                system.--To the extent that the system 
                established under subsection (b) is found not 
                to be a secure system to determine employment 
                eligibility in the United States, the President 
                shall, subject to paragraph (3) and taking into 
                account the results of any demonstration 
                projects conducted under paragraph (4), 
                implement such changes in (including additions 
                to) the requirements of subsection (b) as may 
                be necessary to establish a secure system to 
                determine employment eligibility in the United 
                States. Such changes in the system may be 
                implemented only if the changes conform to the 
                requirements of paragraph (2).
            [(2) Restrictions on changes in system.--Any change 
        the President proposes to implement under paragraph (1) 
        in the verification system must be designed in a manner 
        so the verification system, as so changed, meets the 
        following requirements:
                    [(A) Reliable determination of identity.--
                The system must be capable of reliably 
                determining whether--
                            [(i) a person with the identity 
                        claimed by an employee or prospective 
                        employee is eligible to work, and
                            [(ii) the employee or prospective 
                        employee is claiming the identity of 
                        another individual.
                    [(B) Using of counterfeit-resistant 
                documents.--If the system requires that a 
                document be presented to or examined by an 
                employer, the document must be in a form which 
                is resistant to counterfeiting and tampering.
                    [(C) Limited use of system.--Any personal 
                information utilized by the system may not be 
                made available to Government agencies, 
                employers, and other persons except to the 
                extent necessary to verify that an individual 
                is not an unauthorized alien.
                    [(D) Privacy of information.--The system 
                must protect the privacy and security of 
                personal information and identifiers utilized 
                in the system.
                    [(E) Limited denial of verification.--A 
                verification that an employee or prospective 
                employee is eligible to be employed in the 
                United States may not be withheld or revoked 
                under the system for any reason other than that 
                the employee or prospective employee is an 
                unauthorized alien.
                    [(F) Limited use for law enforcement 
                purposes.--The system may not be used for law 
                enforcement purposes, other than for 
                enforcement of this Act or sections 1001, 1028, 
                1546, and 1621 of title 18, United States Code.
                    [(G) Restriction on use of new documents.--
                If the system requires individuals to present a 
                new card or other document (designed 
                specifically for use for this purpose) at the 
                time of hiring, recruitment, or referral, then 
                such document may not be required to be 
                presented for any purpose other than under this 
                Act (or enforcement of sections 1001, 1028, 
                1546, and 1621 of title 18, United States Code) 
                nor to be carried on one's person.
            [(3) Notice to congress before implementing 
        changes.--
                    [(A) In general.--The President may not 
                implement any change under paragraph (1) unless 
                at least--
                            [(i) 60 days,
                            [(ii) one year, in the case of a 
                        major change described in subparagraph 
                        (D)(iii), or
                            [(iii) two years, in the case of a 
                        major change described in clause (i) or 
                        (ii) of subparagraph (D),
                before the date of implementation of the 
                change, the President has prepared and 
                transmitted to the Committee on the Judiciary 
                of the House of Representatives and to the 
                Committee on the Judiciary of the Senate a 
                written report setting forth the proposed 
                change. If the President proposes to make any 
                change regarding social security account number 
                cards, the President shall transmit to the 
                Committee on Ways and Means of the House of 
                Representatives and to the Committee on Finance 
                of the Senate a written report setting forth 
                the proposed change. The President promptly 
                shall cause to have printed in the Federal 
                Register the substance of any major change 
                (described in subparagraph (D)) proposed and 
                reported to Congress.
                    [(B) Contents of report.--In any report 
                under subparagraph (A) the President shall 
                include recommendations for the establishment 
                of civil and criminal sanctions for 
                unauthorized use or disclosure of the 
                information or identifiers contained in such 
                system.
                    [(C) Congressional review of major 
                changes.--
                            [(i) Hearings and review.--The 
                        Committees on the Judiciary of the 
                        House of Representatives and of the 
                        Senate shall cause to have printed in 
                        the Congressional Record the substance 
                        of any major change described in 
                        subparagraph (D), shall hold hearings 
                        respecting the feasibility and 
                        desirability of implementing such a 
                        change, and, within the two year period 
                        before implementation, shall report to 
                        their respective Houses findings on 
                        whether or not such a change should be 
                        implemented.
                            [(ii) Congressional action.--No 
                        major change may be implemented unless 
                        the Congress specifically provides, in 
                        an appropriations or other Act, for 
                        funds for implementation of the change.
                    [(D) Major changes defined.--As used in 
                this paragraph, the term ``major change'' means 
                a change which would--
                            [(i) require an individual to 
                        present a new card or other document 
                        (designed specifically for use for this 
                        purpose) at the time of hiring, 
                        recruitment, or referral,
                            [(ii) provide for a telephone 
                        verification system under which an 
                        employer, recruiter, or referrer must 
                        transmit to a Federal official 
                        information concerning the immigration 
                        status of prospective employees and the 
                        official transmits to the person, and 
                        the person must record, a verification 
                        code, or
                            [(iii) require any change in any 
                        card used for accounting purposes under 
                        the Social Security Act, including any 
                        change requiring that the only social 
                        security account number cards which may 
                        be presented in order to comply with 
                        subsection (b)(1)(C)(i) are such cards 
                        as are in a counterfeit-resistant form 
                        consistent with the second sentence of 
                        section 205(c)(2)(D) of the Social 
                        Security Act.
                    [(E) General revenue funding of social 
                security card changes.--Any costs incurred in 
                developing and implementing any change 
                described in subparagraph (D)(iii) for purposes 
                of this subsection shall not be paid for out of 
                any trust fund established under the Social 
                Security Act.
            [(4) Demonstration projects.--
                    [(A) Authority.--The President may 
                undertake demonstration projects (consistent 
                with paragraph (2)) of different changes in the 
                requirements of subsection (b). No such project 
                may extend over a period of longer than five 
                years.
                    [(B) Reports on projects.--The President 
                shall report to the Congress on the results of 
                demonstration projects conducted under this 
                paragraph.]
    (e) Compliance.--
            (1) * * *

           *       *       *       *       *       *       *

            (4) Cease and desist order with civil money penalty 
        for hiring, recruiting, and referral violations.--With 
        respect to a violation of subsection (a)(1)(A) or 
        (a)(2), the order under this subsection--
                    (A) shall require the person or entity to 
                cease and desist from such violations and to 
                pay a civil penalty in an amount, subject to 
                paragraph (10), of--
                            (i) [not less than $250 and not 
                        more than $2,000] not less than $5,000 
                        for each unauthorized alien with 
                        respect to whom a violation of either 
                        such subsection occurred,
                            (ii) [not less than $2,000 and not 
                        more than $5,000] not less than $10,000 
                        for each such alien in the case of a 
                        person or entity previously subject to 
                        one order under this paragraph, or
                            (iii) [not less than $3,000 and not 
                        more than $10,000] not less than 
                        $25,000 for each such alien in the case 
                        of a person or entity previously 
                        subject to more than one order under 
                        this paragraph; and
                    [(B) may require the person or entity--
                            [(i) to comply with the 
                        requirements of subsection (b) (or 
                        subsection (d) if applicable) with 
                        respect to individuals hired (or 
                        recruited or referred for employment 
                        for a fee) during a period of up to 
                        three years, and
                            [(ii) to take such other remedial 
                        action as is appropriate.]
                    (B) may require the person or entity to 
                take such other remedial action as is 
                appropriate.

           *       *       *       *       *       *       *

            (5) Order for civil money penalty for paperwork 
        violations.--With respect to a violation of subsection 
        (a)(1)(B), the order under this subsection shall 
        require the person or entity to pay a civil penalty in 
        an amount, subject to paragraph (10), of not less than 
        [$100] $1,000 and not more than [$1,000] $25,000 for 
        each individual with respect to whom such violation 
        occurred. In determining the amount of the penalty, due 
        consideration shall be given to [the size of the 
        business of the employer being charged, the good faith 
        of the employer] the good faith of the employer being 
        charged, the seriousness of the violation, whether or 
        not the individual was an unauthorized alien, and the 
        history of previous violations. 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).

           *       *       *       *       *       *       *

            (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.
    (f) Criminal Penalties and Injunctions for Pattern or 
Practice Violations.--
            [(1) Criminal penalty.--Any person or entity which 
        engages in a pattern or practice of violations of 
        subsection (a)(1)(A) or (a)(2) shall be fined not more 
        than $3,000 for each unauthorized alien with respect to 
        whom such a violation occurs, imprisoned for not more 
        than six months for the entire pattern or practice, or 
        both, notwithstanding the provisions of any other 
        Federal law relating to fine levels.]
            (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.
            (2) Enjoining of pattern or practice violations.--
        Whenever the [Attorney General] Secretary of Homeland 
        Security has reasonable cause to believe that a person 
        or entity is engaged in a pattern or practice of 
        employment, recruitment, or referral in violation of 
        paragraph (1)(A) or (2) of subsection (a), the 
        [Attorney General] Secretary of Homeland Security may 
        bring a civil action in the appropriate district court 
        of the United States requesting such relief, including 
        a permanent or temporary injunction, restraining order, 
        or other order against the person or entity, as the 
        [Attorney General] Secretary of Homeland Security deems 
        necessary.

           *       *       *       *       *       *       *

    (h) Miscellaneous Provisions.--
            (1) * * *

           *       *       *       *       *       *       *

            (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.

           *       *       *       *       *       *       *


                 CIVIL PENALTIES FOR FAILURE TO DEPART

    Sec. 274D. (a) In General.--Any alien subject to a final 
order of removal who--
            (1) * * *

           *       *       *       *       *       *       *

shall pay a civil penalty of not more than $500 to the 
[Commissioner] Secretary of Homeland Security for each day the 
alien is in violation of this section.

           *       *       *       *       *       *       *

    (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.

           *       *       *       *       *       *       *


     entry of alien at improper time or place; unlawful presence; 
               misrepresentation and concealment of facts

    Sec. 275. (a) [Any alien] Except as provided in subsection 
(b), any alien who (1) enters or attempts to enter the United 
States at any time or place other than as designated by 
immigration officers, or (2) eludes examination or inspection 
by immigration officers, [or] (3) 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 (4) is otherwise present in the United States in violation 
of the immigration laws or the regulations prescribed 
thereunder, shall, for the first commission of any such 
offense, be fined under title 18, United States Code, or 
imprisoned not more than [6 months] one year and a day, or 
both, and, for a subsequent commission of any such offense or 
following an order of voluntary departure, be fined under title 
18, United States Code, or imprisoned not more than 2 years, or 
both.

           *       *       *       *       *       *       *

    (c) An individual who knowingly enters into a marriage for 
the purpose of evading any provision of the immigration laws 
shall be imprisoned for not more than [5] 10 years, or fined 
not more than $250,000, or both. An offense under this 
subsection continues until the fraudulent nature of the 
marriage is discovered by an immigration officer.
    (d) Any individual who knowingly establishes a commercial 
enterprise for the purpose of evading any provision of the 
immigration laws shall be imprisoned for not more than [5] 10 
years, fined in accordance with title 18, United States Code, 
or both. An offense under this subsection continues until the 
fraudulent nature of the commercial enterprise is discovered by 
an immigration officer.
    (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.

                        reentry of removed alien

    Sec. 276. (a) Subject to subsection (b), any alien who--
            (1) * * *
            (2) enters, attempts to enter, or is at any time 
        found in, the United States[, unless (A) prior to his 
        reembarkation at a place outside the United States or 
        his application for admission from foreign contiguous 
        territory, the Attorney General has expressly consented 
        to such alien's reapplying for admission; or (B) with 
        respect to an alien previously denied admission and 
        removed, unless such alien shall establish that he was 
        not required to obtain such advance consent under this 
        or any prior Act,],
shall be fined under title 18, United States Code, or 
[imprisoned not more than 2 years,] imprisoned for a term of 
not less than 1 year and not more than 2 years, or both. 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.
    (b) Notwithstanding subsection (a), in the case of any 
alien described in such subsection--
            (1) whose removal was subsequent to a conviction 
        for commission of three or more misdemeanors involving 
        drugs, crimes against the person, or both, or a felony 
        (other than an aggravated felony), such alien shall be 
        fined under title 18, United States Code, [imprisoned 
        not more than 10 years,] imprisoned for a term of not 
        less than 5 years and not more than 10 years, or both;
            (2) whose removal was subsequent to a conviction 
        for commission of an aggravated felony, such alien 
        shall be fined under such title, [imprisoned not more 
        than 20 years,] imprisoned for a term of not less than 
        10 years and not more than 20 years, or both;
            (3) who has been excluded from the United States 
        pursuant to section 235(c) because the alien was 
        excludable under section 212(a)(3)(B) or who has been 
        removed from the United States pursuant to the 
        provisions of title V, and who thereafter, without the 
        permission of the [Attorney General] Secretary of 
        Homeland Security, enters the United States, or 
        attempts to do so, shall be fined under title 18, 
        United States Code, and imprisoned for a period of 10 
        years, which sentence shall not run concurrently with 
        any other sentence[. or]; or
            (4) who was removed from the United States pursuant 
        to section 241(a)(4)(B) who thereafter, without the 
        permission of the [Attorney General] Secretary of 
        Homeland Security, enters, attempts to enter, or is at 
        any time found in, the United States (unless the 
        [Attorney General] Secretary of Homeland Security has 
        expressly consented to such alien's reentry) shall be 
        fined under title 18, United States Code, [imprisoned 
        for not more than 10 years,] imprisoned for a term of 
        not less than 5 years and not more than 10 years, or 
        both.
For the purposes of this subsection, the term ``removal'' 
includes any agreement in which an alien stipulates to removal 
during (or not during) a criminal trial under either Federal or 
State law. 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.
    (c) Any alien deported pursuant to section [242(h)(2)] 
241(a)(4) who enters, attempts to enter, or is at any time 
found in, the United States (unless the [Attorney General] 
Secretary of Homeland Security has expressly consented to such 
alien's reentry) shall be incarcerated for the remainder of the 
sentence of imprisonment which was pending at the time of 
deportation without any reduction for parole or supervised 
release. Such alien shall be subject to such other penalties 
relating to the reentry of deported aliens as may be available 
under this section or any other provision of law.

           *       *       *       *       *       *       *

    (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.

     aiding or assisting certain aliens to enter the united states

    Sec. 277. [Any person] (a) Subject to subsection (b), any 
person who knowingly aids or assists any alien inadmissible 
under section 212(a)(2) (insofar as an alien inadmissible under 
such section has been convicted of an aggravated felony) or 
212(a)(3) (other than subparagraph (E) thereof) to enter the 
United States, or who connives or conspires with any person or 
persons to allow, procure, or permit any such alien to enter 
the United States, shall be fined under title 18, United States 
Code, or imprisoned not more than 10 years, or both.
    (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).

           *       *       *       *       *       *       *


     central file; information from other departments and agencies

    Sec. 290. (a) * * *
    (b) Any information in any records kept by any department 
or agency of the Government as to the identity and location of 
aliens in the United States, or as to any person seeking any 
benefit or privilege under the immigration laws, shall be made 
available to the [Service] Secretary of Homeland Security upon 
request made by the [Attorney General] Secretary to the head of 
any such department or agency.

           *       *       *       *       *       *       *


TITLE III--NATIONALITY AND NATURALIZATION

           *       *       *       *       *       *       *


Chapter 2--Nationality Through Naturalization

           *       *       *       *       *       *       *


                        naturalization authority

    Sec. 310. (a) * * *

           *       *       *       *       *       *       *

    (c) Judicial Review.--A person whose application for 
naturalization under this title is denied, after a hearing 
before an immigration officer under section 336(a), may, no 
later than the date that is 120 days after the Secretary's 
final determination seek review of such denial before the 
United States district court for the district in which such 
person resides in accordance with chapter 7 of title 5, United 
States Code. [Such review shall be de novo, and the court shall 
make its own findings of fact and conclusions of law and shall, 
at the request of the petitioner, conduct a hearing de novo on 
the application.] 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.

           *       *       *       *       *       *       *


 requirements as to residence, good moral character, attachment to the 
principles of the constitution, and favorable disposition to the united 
                                 states

    Sec. 316. (a) * * *

           *       *       *       *       *       *       *

    (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.

           *       *       *       *       *       *       *


            prerequisite to naturalization; burden of proof

    Sec. 318. Except as otherwise provided in this title, no 
person shall be naturalized unless he has been lawfully 
admitted to the United States for permanent residence in 
accordance with all applicable provisions of this Act. The 
burden of proof shall be upon such person to show that he 
entered the United States lawfully, and the time, place, and 
manner of such entry into the United States, but in presenting 
such proof he shall be entitled to the production of his 
immigrant visa, if any, or of other entry document, if any, and 
of any other documents and records, not considered by the 
Attorney General to be confidential, pertaining to such entry, 
in the custody of the Service. Notwithstanding the provisions 
of section 405(b), and except as provided in sections 328 and 
329 no person shall be naturalized against whom there is 
outstanding a final finding of deportability pursuant to a 
warrant of arrest issued under the provisions of this or any 
other Act; and no application for naturalization [shall be 
considered by the Attorney General] shall be considered by the 
Secretary of Homeland Security or any court if there is pending 
against the applicant a removal proceeding [pursuant to a 
warrant of arrest issued under the provisions of this or any 
other Act:] 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: 
Provided, That the findings of the Attorney General in 
terminating removal proceedings or in canceling the removal of 
an alien pursuant to the provisions of this Act, shall not be 
deemed binding in any way [upon the Attorney General] upon the 
Secretary of Homeland Security with respect to the question of 
whether such person has established his eligibility for 
naturalization as required by this title.

           *       *       *       *       *       *       *


         hearings on denials of applications for naturalization

    Sec. 336. (a) * * *
    [(b) If there is a failure to make a determination under 
section 335 before the end of the 120-day period after the date 
on which the examination is conducted under such section, the 
applicant may apply to the United States district court for the 
district in which the applicant resides for a hearing on the 
matter. Such court has jurisdiction over the matter and may 
either determine the matter or remand the matter, with 
appropriate instructions, to the Service to determine the 
matter.]
    (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.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 924 OF TITLE 18, UNITED STATES CODE

Sec. 924. Penalties

    (a) * * *

           *       *       *       *       *       *       *

    (c)(1)(A) Except to the extent that a greater minimum 
sentence is otherwise provided by this subsection or by any 
other provision of law, any person who, during and in relation 
to any crime of violence, alien smuggling crime, or drug 
trafficking crime (including a crime of violence, alien 
smuggling crime, or drug trafficking crime that provides for an 
enhanced punishment if committed by the use of a deadly or 
dangerous weapon or device) for which the person may be 
prosecuted in a court of the United States, uses or carries a 
firearm, or who, in furtherance of any such crime, possesses a 
firearm, shall, in addition to the punishment provided for such 
crime of violence, alien smuggling crime, or drug trafficking 
crime--
            (i) * * *

           *       *       *       *       *       *       *

    (D) Notwithstanding any other provision of law--
            (i) * * *
            (ii) no term of imprisonment imposed on a person 
        under this subsection shall run concurrently with any 
        other term of imprisonment imposed on the person, 
        including any term of imprisonment imposed for the 
        crime of violence, alien smuggling crime, or drug 
        trafficking crime during which the firearm was used, 
        carried, or possessed.

           *       *       *       *       *       *       *

    (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).

           *       *       *       *       *       *       *

                              ----------                              


                     HOMELAND SECURITY ACT OF 2002

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) * * *
    (b) Table of Contents.--The table of contents for this Act 
is as follows:

Sec. 1. Short title; table of contents.
     * * * * * * *

       TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

     * * * * * * *

                  Subtitle C--Miscellaneous Provisions

Sec. 421. Transfer of certain agricultural inspection functions of the 
          Department of Agriculture.
     * * * * * * *
Sec. 431. Office of Air and Marine Operations.

           *       *       *       *       *       *       *


TITLE I--DEPARTMENT OF HOMELAND SECURITY

           *       *       *       *       *       *       *


SEC. 103. OTHER OFFICERS.

    (a) Deputy Secretary; Under Secretaries.--There are the 
following officers, appointed by the President, by and with the 
advice and consent of the Senate:
            (1) * * *

           *       *       *       *       *       *       *

            (9) Not more than [12] 13 Assistant Secretaries.

           *       *       *       *       *       *       *


TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

           *       *       *       *       *       *       *


Subtitle C--Miscellaneous Provisions

           *       *       *       *       *       *       *


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.

           *       *       *       *       *       *       *

                              ----------                              


                 SECTION 103 OF THE REAL ID Act of 2005

                   (Division B of Public Law 109-13)

SEC. 103. INADMISSIBILITY DUE TO TERRORIST AND TERRORIST-RELATED 
                    ACTIVITIES.

    (a) * * *

           *       *       *       *       *       *       *

    (d) Effective Date.--The amendments made by this section 
shall take effect on the date of the enactment of this 
division, 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, deportation, and exclusion proceedings 
        instituted before, on, or after the date of the 
        enactment of this division; and

           *       *       *       *       *       *       *

                              ----------                              


               SECTION 509 OF THE IMMIGRATION ACT OF 1990

SEC. 509. GOOD MORAL CHARACTER DEFINITION.

      (a) * * *
      [(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 occurring on or after such date, 
except with respect to conviction for murder which shall be 
considered a bar to good moral character regardless of the date 
of the conviction.]
    (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.
                              ----------                              


SECTION 5504 OF THE INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 
                                  2004

SEC. 5504. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE COMMITTED 
                    ACTS OF TORTURE, EXTRAJUDICIAL KILLINGS, OR SEVERE 
                    VIOLATIONS OF RELIGIOUS FREEDOM.

    Section 101(f) of the Immigration and Nationality Act (8 
U.S.C. 1101(f)) is amended--
            (1) * * *
            (2) by [adding at the end] inserting immediately 
        after paragraph (8) the following:
            ``(9) one who at any time has engaged in conduct 
        described in section 212(a)(3)(E) (relating to 
        assistance in Nazi persecution, participation in 
        genocide, or commission of acts of torture or 
        extrajudicial killings) or 212(a)(2)(G) (relating to 
        severe violations of religious freedom).''.
                              ----------                              


      SECTION 401 OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT 
                       RESPONSIBILITY ACT OF 1996

SEC. 401. ESTABLISHMENT OF PROGRAMS.

    (a) * * *
    (b) Implementation Deadline; Termination.--The Secretary of 
Homeland Security shall implement the pilot programs in a 
manner that permits persons and other entities to have 
elections under section 402 of this division made and in effect 
no later than 1 year after the date of the enactment of this 
Act. Unless the Congress otherwise provides, the Secretary of 
Homeland Security shall terminate a pilot program [at the end 
of the 11-year period beginning on the first day the pilot 
program is in effect] two years after the enactment of the 
Border Protection, Antiterrorism, and Illegal Immigration 
Control Act of 2005.

           *       *       *       *       *       *       *


                     Committee Jurisdiction Letters


                           Markup Transcript



                            BUSINESS MEETING

                       THURSDAY, DECEMBER 8, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee), 
presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    [Intervening business.]
    Chairman Sensenbrenner. Now, pursuant to notice, I call up 
the bill, H.R. 4437, the ``Border Protection, Antiterrorism and 
Illegal Immigration Control Act of 2005'' for purposes of 
markup and move its favorable recommendation to the House. 
Without objection, the bill will be considered open for 
amendment by title, then each title will be considered as read.
    [The bill, H.R. 4337, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to----
    Mr. Scott. Mr. Chairman, parliamentary inquiry. Did I 
understand you to say that each section would be considered for 
amendment as read?
    Chairman Sensenbrenner. Each title will be considered for 
amendment as read--title, not section.
    Mr. Scott. I would ask unanimous consent, if an amendment 
is relevant to one section but covers other sections, that the 
amendment could be in order.
    I have an amendment that strikes all the mandatory minimums 
in the bill, and rather than having section by section, it 
would make more sense to have one amendment.
    Chairman Sensenbrenner. The Chair would recommend that you 
redraft your amendment because everybody else would then ask 
the same thing and we would be jumping all around the bill on 
disjointed questions.
    Let me redraft the unanimous consent request. I would ask 
unanimous consent that the bill be considered open for 
amendment by title, each title be considered as read, but that 
an amendment would be in order that deals with several 
different titles as long as it is offered to the last title of 
the bill to which it relates. With that understanding, without 
objection, so ordered.
    The Chair now recognizes himself for 5 minutes to explain 
the bill.
    America has lost control of its borders and is experiencing 
an unprecedented rise in illegal immigration. Border insecurity 
and lax enforcement of our Nation's immigration laws poses a 
security threat to the American people and rewards those who 
violate the law.
    Large majorities of Americans support efforts to restore 
integrity to our Nation's borders and to stem the tide of 
illegal entry into the United States. America is a nation of 
immigrants but it is also a nation of laws. These concepts are 
not mutually exclusive and the legislation we consider at 
today's markup reflects this recognition.
    Earlier this week, Homeland Security Chairman King and I 
introduced legislation to regain control of our borders and 
demagnetize the lure of higher-wage employment that drives 
illegal entry into this country. H.R. 4437 will help restore 
the integrity of our Nation's borders and reestablish respect 
for our laws by holding violators accountable, including human 
traffickers, employers who hire illegal aliens, and alien gang 
members who terrorize communities throughout the country.
    This legislation incorporates vital border security 
protection provisions contained in H.R. 4312, reported by the 
Committee on Homeland Security earlier this month.
    I will briefly outline some of the most important 
provisions of this legislation within this Committee's 
jurisdiction. First, the bill will fulfill the unkept promise 
of the Immigration Reform and Control Act of 1986 by providing 
all employers with a reliable method of determining whether 
employees are eligible to work. The bill institutes an employer 
eligibility verification system in which all employers will 
confirm or deny the authenticity of Social Security numbers 
offered by job applicants. This mechanism will identify 
fraudulent submissions and ensure that employees are not 
working in the U.S. illegally.
    The bill expands on the promise of Representative Calvert's 
H.R. 19 to build upon a successful pilot program that currently 
enables employers to verify the employment eligibility of their 
workers. Currently, employer participation in this program is 
on a voluntary basis. This legislation requires that all 
employers will check new hires against this database within 2 
years.
    The bill also increases penalties for alien smuggling. 
Under current law, individuals convicted of smuggling crimes 
often receive lenient sentences. The GAO has found that 
convicted smugglers, including those responsible for death or 
serious injury, receive an average sentence of only 10 months. 
Weak penalties fuel a trade in illegal alien smuggling because 
the risk of punishment for illegally transmitting aliens is far 
less than transmitting illegal drugs or committing other 
serious crimes.
    Those who suffer the most are often the most vulnerable and 
desperate, entering our country in perilous conditions that 
sometimes result in either injury or death. Moreover, the debts 
owed to alien smugglers by those transported in the country 
illegally often create a form of indentured servitude that 
enriches criminal syndicates. The legislation establishes 
strong penalties to deter this trade in human traffic.
    The legislation also cracks down on alien members of 
violent street gangs that have become a threat to communities 
across the country. It incorporates the Alien Gang Removal Act 
which was authored by Congressman Forbes, which passed this 
Committee. The bill also increases penalties for previously 
deported aliens who illegally reenter the United States. These 
provisions were incorporated from H.R. 3150 introduced by 
Congressman Issa.
    A crucial provision of the legislation remedies the current 
situation in which the U.S. is required to release dangerous 
alien criminals onto our streets. Department of Homeland 
Security is currently not permitted to detain for more than a 
short time dangerous aliens who cannot be deported. This has 
compelled the release of thousands of criminal aliens, 
including murders and rapists. One of those released 
subsequently murdered a New York State trooper. The legislation 
allows for the detention of such illegal aliens.
    The bill also bars aliens who are terrorists or security 
risks from becoming naturalized U.S. citizens, makes aggravated 
felons inadmissible to the U.S., and facilitates the 
deportation of aliens who sexually abuse minors.
    Many of the provisions in the bill were requested by the 
Justice Department and the Department of Homeland Security. 
This legislative effort will not only help regain control of 
our borders and prevent illegal immigration, but will help 
strengthen and promote our compassionate and welcoming legal 
immigration system.
    At this point, I wish to provide the following reminder to 
Committee Members. Rule XVI(7) of the House requires that 
Committee amendments be germane to the Rule X jurisdiction of 
the Committee considering the amendment. The legislation we 
consider today incorporates several border security provisions 
reported by the Committee on Homeland Security. Rule X provides 
the Committee on Homeland Security with jurisdiction over the 
administrative aspects of the Department of Homeland Security 
as well as border and port security, except immigration policy 
and nonborder enforcement. As a result, amendments offered at 
today's markup exclusively within the Rule X jurisdiction of 
the Committee on Homeland Security will be considered 
nongermane for purposes of this markup, and I urge my 
colleagues to support the bill and recognize the gentleman from 
Michigan.
    Mr. Conyers. Thank you, Mr. Chairman and Members.
    This is a sad moment as we close out the first year of the 
109th session of Congress because this bill is mostly not about 
border security; the bill includes some provisions, but uses 
them to bootstrap on anti-immigrant legislation, a set of 
legislation that has nothing to do with security at the border. 
And yet again the Republicans are using the fears of terrorism 
that Americans have in this uncertain post-September 11th world 
to piggyback its anti-immigrant agenda on a border security 
proposal, and I am deeply troubled by the procedure that has 
been used.
    Instead of reforming our immigration system to improve 
border security and effectively and realistically address 
undocumented immigration, this bill further destroys the 
system. It is so heinous and extreme that the Democrats on this 
Committee agree that this bill cannot be fixed. It is a 
nonstarter.
    And while we are eager to tell the American people why this 
bill is so dangerous, we will not spin our wheels on an 
impossible task in this partisan environment. With few 
exceptions, we will not even seek to amend this atrocious, 
irreparable bill that I think does no honor--brings no honor to 
this Committee in bringing it forward under these 
circumstances.
    Repeatedly, over the last decade the Republican-controlled 
House has passed one immigration bill or border enforcement 
bill after another, yet the tide of unlawful immigrants 
entering this country continues to rise and then disappear into 
a shadowy, unknown society. Republicans will pass a policy that 
pretends to be tough on security and enforcement and then 
refuse to fund the policies year after year. We know the drill. 
Everybody is on to the game.
    We do not sanction employers who hire unauthorized 
immigrant workers, and yet only three employers in the entire 
country were sanctioned last year for using unlawful labor. We 
are unable to detain or deport everyone here lawfully. We don't 
know who has come or who has gone or who is dangerous. We have 
done nothing to bring the 11 million unlawfully present 
immigrants out of the shadows.
    And so it is with a heavy heart that we begin the task that 
is before us on a bill that is not worthy to be brought before 
the Committee at this time.
    And I return the balance of my time, Mr. Chairman.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements may be included in the record at this point.
    Mr. Berman. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California seek recognition?
    Mr. Berman. Do we have an opportunity at this point, moving 
to strike the last word, to discuss the proposal that is in 
front of us?
    Chairman Sensenbrenner. If the gentleman desires, he can 
move to strike the word.
    Mr. Berman. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Berman. Mr. Chairman, perhaps because I am going to 
make some harsh comments, I want to state at the outset that I 
have great respect for the Chairman's intelligence and his 
fairness in conducting this Committee. This is one of the most 
polarized Committees on the House of Representatives. We have 
many, many ideological differences, and while I feel--and will 
explain why I feel--so strongly about what is going on here 
today, I wanted to put it in the context of those comments.
    The majority's decision to bring forth, as our Ranking 
Member said, on the week before we are about to leave, the 
Border and Immigration Enforcement Act of 2005, to my way of 
thinking can only be attributed to one of three things: 
stupidity, political panic, or venality.
    I want to say that a--before--I will elaborate on why I 
feel that way, but I want to give some views about where I 
think most Democrats are coming from on this issue.
    We believe illegal immigration is wrong. We think we have a 
national crisis respecting illegal immigration, and we think we 
should do whatever we can do to effectively stop it.
    We think that a fundamental attribute of national 
sovereignty is substantial control of who comes into this 
country and how they come in and that the consequences of that 
lack of control--and we do have to a great extent a lack of 
control--causes incredibly serious problems: massive 
disruptions and impacts on public services, health care, 
education, law enforcement, humanitarian tragedies of 
tremendous proportions, exploitation of people, unsafe working 
conditions, disregard of labor laws; and particularly, as we 
know since 9/11, it becomes a vehicle by which terrorists and 
gang members and drug pushers can penetrate our country, 
threaten our security, and threaten our well-being.
    Democrats support expending the resources and making the 
changes necessary to try and fix this problem. Democrats are 
willing to push and support tough border enforcement. At least 
a number of Democrats--I am one of them--are willing to support 
a meaningful verification system to correct the fundamental 
flaw of the 1986 bill so that employers are required to 
determine whether or not the people applying for jobs with them 
are authorized to work in the United States and that that 
corrects a big part of this problem.
    But we also know that just doing those two things alone 
will do nothing; and that is where I get to the point that 
putting this proposal before us in the form it is in now--not 
so much because of the provisions that are in this bill, 
although a number of them I would suggest changes--but because 
of what is not in this bill demonstrates a reckless foolishness 
or some kind of political panic that is motivating the majority 
to act, notwithstanding the fact that what they are proposing 
will not solve their problem, or a certain kind of venality in 
a political context.
    The stupidity of this bill is that everyone knows this 
won't work. The Chairman himself, I have read four separate 
times in the last week, says without a guest worker program--we 
need to have a guest worker program, but that won't come in 
this bill. The President of the United States, George Bush, on 
a number of occasions has said the only approach to dealing 
with this issue is on a comprehensive basis.
    We have 11 million people in this country here illegally. 
Without dealing with that fact, we are not going to solve the 
problem no matter how loud we shout about how tough we are. 
Senators Cornyn and Kyl and McCain on the Republican side of 
the aisle in the Senate recognize--they have different ways of 
approaching it, but recognize the need for a comprehensive 
approach. There are people on this Committee who I have talked 
to who know that without dealing with the issue of the 11 
million undocumented----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Berman. I would ask unanimous consent for 2 additional 
minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Berman. There are people on the other aisle of this 
Committee that know full well that this bill, one, will never 
pass the U.S. Senate; and secondly, if it were to become law, 
would never deal with the problem unless we deal with the 
problem of the people in this country now on illegal status, 
unauthorized status, and deal with the issue of future worker 
and worker needs for American businesses.
    So for those reasons this is a foolish approach.
    So then I come to the conclusion perhaps, since surely the 
majority would not do something that cannot work intentionally, 
they must have a different motivation. And perhaps it is the 
fear of being Dreierized or Campbellized that certain kinds of 
demagogues on talk radio and the very understandable anger of 
the American people about our failure to fix this problem make 
them want to go for the quick-fix, easy solution that is no 
solution, and that this is fear at a time of plunging polls and 
scandals and demonstrations of executive incompetence and 
politicization of the disaster relief process. This becomes an 
issue to try and get a hold of in order to position oneself for 
the next elections.
    Or maybe there is venality here. Maybe this is Ross Barnett 
of the 21st century. We are going to out-set whoever runs 
against us by demagoguing this issue. And these are harsh 
comments, but I can only understand what is happening here in 
the context of these ideas because you know, you know----
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Berman. My last sentence is, this isn't about--we can 
have an interesting and philosophical debate about birthright, 
citizenship or what kind of enforcement--interior enforcement 
to have, or specific measures; but the notion it's not what is 
in this bill, that means this bill is destined not to solve the 
problem, and for that reason, I don't believe that this 
Committee should pass this bill out of here.
    Chairman Sensenbrenner. The Clerk will designate title I.
    The Clerk. Securing United States borders----
    Chairman Sensenbrenner. Are there any amendments to title 
I?
    Mr. King. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Iowa, Mr. King, 
for what purpose do you seek recognition?
    Mr. King. I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    Mr. King. Eighty-nine.
    The Clerk. Amendment to H.R. 4437, offered by Mr. King of 
Iowa: Insert after Section 2 the following new section, Section 
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.
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. The gentleman from Iowa is 
recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    I offer this amendment today to include a sense of Congress 
about the future direction of our immigration policy. I wholly 
support immigration policy that is designed to enhance the 
economic, social and cultural well-being of the United States 
of America. Immigrants have made and will continue to make 
valuable contributions to our Nation. To benefit both 
immigrants and the United States, we must develop an 
immigration policy that aids the assimilation of newcomers by 
assuring our Nation does not admit more immigrants than it can 
reasonably accommodate.
    Assimilation is valuable to immigrants who benefit from our 
shared American culture of personal responsibility, freedom and 
patriotism. The values shared by our civilization founded on 
the heritage of Western civilization, religious freedom and 
free enterprise capitalism serve immigrants and native born 
alike.
    I am concerned that the recent rise in immigration levels 
in this country will make it difficult for newcomers to 
assimilate and find jobs. We must be careful to admit only as 
many newcomers as we can accommodate so our society will not be 
burden by unemployed immigrants. Cultural continuity must be 
assured by drafting policy that allows new immigrants to thrive 
and benefit the United States, not depend on the Federal 
Government for survival.
    As Americans, we should promote a naturalization process 
that promotes American values, the responsibilities of 
citizenship and our constitutional principles. Candidates for 
naturalization should be proficient in English. Not only will 
English proficiency help newcomers attain better-paying jobs, 
it also provides a means of communication and unity for all 
Americans.
    Finally, as a sovereign Nation, in a time of war 
controlling our borders is paramount. We must ensure terrorists 
do not infiltrate the United States. We must tighten and 
strengthen border control efforts so illegal aliens do not 
enter our country.
    We must always remember the ultimate goal should be 
promotion of the well-being of the United States of America, 
not the benefit of a neighboring country. Setting a manageable 
legal of immigration is a reasonable request to achieve this 
objective. I ask for your support on this amendment.
    Thank you, Mr. Chairman.
    Chairman Sensenbrenner. Does the gentleman yield back his 
time?
    Mr. King. I yield back. 
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from New York, for 
what purpose do you seek recognition?
    Mr. Nadler. To speak on the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Speaker.
    This amendment, I heard what Mr. King thinks he means by 
it, but if you read the amendment, it is meaningless. It is the 
sense of Congress that the immigration and naturalization 
policy should be designed to enhance the economic, social and 
cultural well-being of the United States of America.
    Well, I think everybody will agree with that sentiment. 
Certainly our laws, all our laws, should be designed to enhance 
the economic, social and cultural well-being of the United 
States of America. Of course, on this Committee we may have 36 
different ideas of what bills, laws, amendments would do that. 
We may have different ideas of what advances the economic, 
social and cultural well-being of the United States of America.
    I will stipulate that I will support this amendment because 
who could not, who could be against enhancing the economic, 
social and cultural well-being of the United States, although 
my interpretation of what would do that may be very different 
than Mr. King's interpretation, may in fact be diametrically 
opposed to what he thinks this amendment will do. So because 
this amendment states well-meaning goals, it is totally 
meaningless, I urge everyone to vote for it.
    Chairman Sensenbrenner. Does the gentleman want to yield 
back?
    Mr. Nadler. I do not want to yield back.
    Second, I want to second what Mr. Berman said. It is an 
outrage this bill is before us today, not just for the reasons 
that he said, but because this is a 169-page bill which makes 
fundamental changes, some technical, some very complicated, 
with far-reaching effects in many different aspects of the law; 
and the Democrats didn't see this 169-page bill until the day 
before yesterday. We have not had an opportunity to analyze it. 
I guarantee that the public at large, the professors, lawyers, 
immigration bar have not had an opportunity to analyze it or 
give comments.
    There is no pressing necessity. When we passed the PATRIOT 
Act bill, unread, 4 years ago--not talking about this year, but 
originally 4 years ago--no one had a chance to read that. We 
were told well, we can't wait a week, there will be blood on 
our hands.
    Why can't we wait a week, or 2, or 6? Nothing is happening.
    This problem is a long-standing problem, it is going to be 
long-standing. We should deal with it as Mr. Berman said. But 
to deal with it by passing what may not be a one-House bill--or 
even worse, not a one-House bill--without proper analysis, with 
no opportunity to really look into it, is a disgrace and a 
travesty on the legislative record.
    I am going to use the remaining time to discuss one 
provision of this bill which I just glanced at, haven't had a 
chance to really go into it, but is something that deserves 
extensive discussion in this Committee.
    The expedited removal provision in title IV. This bill 
would require the Border Patrol to pick up and deport without 
even an administrative hearing, to deport without even an 
administrative hearing anyone within 100 miles of the border 
that an agent thinks is an undocumented immigrant who has been 
present less than 14 days.
    It expands on the controversial policy of expedited 
removal, which grants extraordinary and unprecedented power to 
low-level immigration officers to remove individuals without 
review and without a fair hearing. ``expedite removal'' 
currently is applied to noncitizens arriving at airports with 
apparently improper documents, to noncitizens arriving by sea 
and a few other categories of noncitizens. Even as currently 
applied, expedited removal results in terrible mistakes 
including its wrongful application to genuine refugees and even 
to U.S. citizens.
    In 2001, 4 years ago, the Senate heard harrowing testimony 
from refugees wrongly subjected to expedited removal, including 
in one instance an Algerian refugee who faced persecution from 
Islamic extremists for his refusal--refusal to participate in a 
plot to murder his employer, the former Algerian president. 
Because of expedited removal, he was shackled when he said he 
would be sent back without review despite his claims of 
political asylum.
    A Tibetan Buddhist monk also testified before the Senate, a 
monk whose comrades, two monks and a nun, were wrongly sent 
back to China and no one has heard from them since.
    The Senate also heard the case of Sharon McKnight, an 
American citizen of Jamaican descent who suffers a mental 
disability and was wrongly put into expedited removal and sent 
to Jamaica because an inspector mistakenly thought her passport 
was fake and she didn't have the mental competence to persuade 
him otherwise.
    Expedited removal, Mr. Chairman, should be fixed, not 
expanded. Because there is no check on expedited removal, 
expanding it to any person a Government official thinks is a 
recently arrived illegal immigrant within 100 miles of the 
border will inevitably result in the wrongful arrest and even 
deportation of perfectly legal residents, and even of U.S. 
citizens who may be of Mexican America heritage or look foreign 
to a Border Patrol officer, because there is no appeal for 
that, no hearing or administrative proceeding, never mind an 
immigration judge.
    Expanding this policy to persons----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. I will ask unanimous consent for 2 additional 
minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. Thank you.
    Expanding the policy of expedited removal to include 
persons already within the United States poses grave 
constitutional problems. In the case of Zadvydas v. Davis the 
U.S. Supreme Court ruled in 2001 once an alien enters the 
country, the legal circumstances change, for the due process 
clause applies to all persons within the United States, 
including aliens, whether their presence here is lawful, 
unlawful, temporary or permanent, end quote from the Supreme 
Court.
    So to have an expedited removal for someone within the 
United States not caught at the border without any kind of due 
process is clearly unconstitutional. In Shaughnessy v. United 
States ex rel. Miezi, also decided by the Supreme Court, 
although this is an older case, aliens who have once passed 
through our gates, even illegally, may be expelled only after 
proceedings conforming to traditional standards of fairness 
encompassed in due process.
    So here we have a provision in this bill which we don't 
have time to really go into, don't have time to examine, and 
don't have time to fix because maybe its aims are okay. But we 
don't have time to fix it because we have got to rush this bill 
through, and yet it is clearly unconstitutional, as applied, in 
many cases. It will clearly result in U.S. citizens, legally 
admitted aliens, being deported improperly; and it will result 
in people with good claims of political asylum, people whom we 
want in this country, who may have fled here because they 
oppose the Taliban or opposed the tyrants that we are opposing, 
we will send them back to be murdered, raped or punished for 
their nerve in standing up for American values and for freedom.
    This is really something that is not a good idea. I yield 
back.
    Chairman Sensenbrenner. The question is----
    Mr. Delahunt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Delahunt.
    Mr. Delahunt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Delahunt. I won't take the 5 minutes.
    I would encourage support for the amendment for the reasons 
articulated by my colleague from New York, Mr. Nadler.
    My good friend from Iowa, Mr. King, speaks about a number, 
a number which I would pose to him that I am not sure of, but a 
number that he believes that this Nation could deal with in 
terms of assimilation; and I wonder if he would share with us 
that particular number of immigrants.
    I yield to my friend from Iowa.
    Mr. King. Thank the gentleman from Massachusetts.
    And I have spoken openly about this on the floor, as Mr. 
Delahunt may recall, and I said that I will support a 
consistent level of immigration that is in the 450 to 500,000 a 
year number, kind of the legal number that we have.
    I think if anybody is going to have an opinion on 
immigration, the first thing they ought to answer is, is there 
such a thing as too much immigration, and the next question is 
how much is too much. If you don't have an opinion on that, 
then you ought not engage in this debate.
    I thank you and yield back.
    Mr. Delahunt. I yield back.
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. The amendment itself, as pointed out by our 
colleague from New York, Mr. Nadler, basically is meaningless, 
and therefore, we can vote whichever way we want; it doesn't 
accomplish anything. But I do think it is important to note 
some of the severe problems in the base bill.
    One of the things that has not yet been fully discussed is 
that approval and enactment of this bill into law would 
preclude President Bush's proposal to have some kind of orderly 
progress to allow those who are temporarily working to have 
legal status even for a temporary period, because the bill 
turns people who are undocumented into aggravated felons.
    I think it is worth pointing out that among the several 
million people who are here without documents and whom we need 
to deal with include at least a million and a half children 
who, under the bill, would become aggravated felons. To think 
that this would solve the problem that besets the country, I 
think is a mistake.
    I want to note something else, and it is a small issue 
perhaps, but it is a big issue to those who are fleeing 
communism, and it is an issue that I raised in the Homeland 
Security markup, and we were advised that we lacked 
jurisdiction in the Homeland Security Committee, so obviously 
we have jurisdiction in this Committee; and that deals with 
Section 404, the denial of admission to nationals of countries 
denying or delaying accepting an alien.
    It is a problem when the United States decides to deport 
someone; if the country of origin refuses to repatriate that 
person, it causes a problem. The answer to that is diplomacy. 
Recently, although it has caused problems in some communities, 
the United States did negotiate an agreement with the country 
of Cambodia to accept people who are permanent residents of the 
United States who are not deportable back to Cambodia.
    The problem that I see with this provision is that it 
punishes the victim of communism rather than actually dealing 
with the Communist government that is at fault, and let me give 
you an example. I have a large number of Vietnamese Americans 
in my district. I will guarantee you this, the Communist 
government in Vietnam does not care about the civil rights of 
their citizens. As a matter of fact, as some Members of the 
Committee know, they are actively engaged in oppressing 
religious freedom, political freedom, freedom of the press. I 
mean they have been cited by our State Department as a country 
of particular concern.
    Under the provisions of this act, if someone escapes from 
the Communists in Vietnam because they have been oppressed by 
that authoritarian Communist government, they would not be 
admitted to the United States because their government refuses 
to repatriate deportees.
    Now, how is that a sensible provision? It is not.
    I would like to point out that in addition to Vietnamese 
who are fleeing communism, the other big country that refuses 
to repatriate is China. Now, we have an economic relationship 
with China, but I have not been impressed that the Chinese 
government is particularly concerned about the civil rights, 
civil liberties and religious freedom of the people of China. 
In fact, many Members of Congress have outlined various abuses 
that have occurred by the Chinese government towards their 
citizens, including forced abortions, oppression of religious 
freedom and the like.
    Why should we oppress further those people who have fled 
from China, presented themselves to the United States having 
fled from that oppressive Communist regime? Why should we turn 
those victims of communism away to punish the Communist 
government? This is completely nonsensical. It is only one of 
many bad provisions in this bill, but it is something that 
ought to be thoroughly rejected. It will not accomplish its 
goal, and it really is playing into the hands of authoritarian 
Communist regimes, especially in Asia, and deserves our 
repudiation and----
    Ms. Waters. Will the gentlelady yield?
    Ms. Lofgren. I will be happy to yield to the gentlelady.
    Ms. Waters. Since you have taken a look at that section, do 
you understand this section basically dictates that if they 
refuse to take a person back, we close down our borders to the 
country forever?
    Ms. Lofgren. It would include not just refugees but, for 
example, if a person born in China married my son.
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Ms. Lofgren. I would ask 1 additional minute.
    Mr. Issa. I object. Not speaking to the amendment.
    Chairman Sensenbrenner. Objection is heard.
    The question is on agreeing to the amendment offered by the 
gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. I yield to the gentlelady from California.
    Ms. Lofgren. Thank you. I would just, in response to my 
colleague from California, Ms. Waters, point out that this is a 
comprehensive bar and it would include those who are married to 
American citizens.
    If my son falls in love and marries a gal from China, I 
mean she would be excluded. It would include Nobel Prize 
winners who want to come over and become part of the American 
economy and bring their patent portfolio with them, in addition 
to those who would be asylees.
    So I think this is really a way to not only punish victims 
of communism but also to punish Americans for no good reason.
    And I note that my colleague from Texas wished time so I 
would further yield to the gentlelady.
    Mr. Scott. I yield.
    Ms. Jackson Lee. I thank--is the gentleman yielding?
    Mr. Scott. I yield to you.
    Ms. Jackson Lee. I thank very much the distinguished 
gentleman and distinguished gentlelady from California.
    Let me just--as the time wanes, just simply say that as we 
look at the provisions that you have spoken about, it adds to 
my angst and concern that this legislation creates gridlock for 
the immigration system of America. It is not a practical 
approach, though there are many aspects that I believe we could 
have collaborated on in a very bipartisan way; evidence the 
border security bill out of Homeland Security. H.R. 4044 that I 
had offered spoke to the question of enhancing Border Patrol 
agents' training, scholarship, equipment and detention beds.
    As I look at the legislation that we have now, we will 
effectively shut down the Nation's resort communities, hotels, 
restaurants. Again, we go back to employer sanctions which were 
ineffective in 1996, and I don't know how they can be effective 
now. You give no out and no relief for existing undocumented 
individuals who are tax-paying on homes or children who are in 
school. There is no relief whatsoever.
    You close the door to a guest worker program and you close 
the door to an earned access to legalization, fair responses to 
the 11 million undocumented aliens in this country. When we 
leave this place today we will have done nothing to address 
that question.
    My concern on Mr. King's amendment is that it is benign in 
and of itself, and I wish that he would have an amendment that 
says that we want to address the undocumented problem in this 
country. And when I say ``problem,'' I am suggesting that we 
cannot look away from hard-working, tax-paying individuals. 
Again, we take judicial review to the next level, and though we 
are a nation of due process and the Bill of Rights, we suggest 
that a revocation of a visa is not appealable.
    I support the alien smuggling provisions, enhanced 
provisions to avoid the loss of life, those being smuggled 
across the border. It is reasonable. But certainly I think the 
process of due process is reputable and adds to the democracy 
and the image of the United States.
    We know that this Nation is a nation of laws, it is a 
nation of immigrants. We also recognize that this country is 
better because we interact with people from around the world. 
It helps us when students from the Mideast come and are 
educated in the Nation's schools. In many instances, they may 
help us create jobs.
    This bill does not open the door to a fix of the 
immigration system; it dampens asylum, it rushes for expedited 
removal without due process, and in fact, in the detention it 
seems to me that rather than focusing on the OTMs, which many 
of us have suggested are the gateway for terrorists, we are 
suggesting that we are going to detain everyone.
    Even in H.R. 4044 I was bold enough to suggest that we 
needed 100,000 beds. You will never get the number of beds 
necessary in order to provide the security that this bill is 
offering.
    Lastly, let me say when we begin to open the doors, as many 
of my good friends have advocated for local officials who are 
clamoring to be immigration officers, we are going down the 
pathway of no return and doom. Local law enforcement are to get 
the cops and robbers in their own community. And believe me, 
they are over their heads in that, to add the immigration issue 
so that the least little person driving their vehicle down 
someone's highway is intimidated by a local sheriff; and I do 
believe they have good intentions.
    The bill also adds to the enhanced responsibility of the 
Department of Defense, and I clearly believe you are crossing 
the line of demarcation of making this country a militarized 
nation by insisting that the Department of Defense has an 
active role on the border.
    Chairman Sensenbrenner. The time of the gentleman from 
Virginia has expired.
    Ms. Jackson Lee. I would suggest that this bill needs 
collaborative effort, Mr. Chairman, and I hope we can take it 
back and work with the Democrats. I yield back.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment offered by the gentleman from Iowa, Mr. King. Those 
in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it and the 
amendment is agreed to. Are there further amendments to title 
I?
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. For what purposes does the 
gentleman from New York seek recognition?
    Mr. Nadler. Strike the last word on the bill.
    Chairman Sensenbrenner. The gentleman, I believe, has 
already been recognized.
    Mr. Nadler. I was recognized on the amendment, not on the 
bill.
    Chairman Sensenbrenner. Are there further amendments to 
title I?
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from New York is 
recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, since we have not had proper time to analyze 
this bill or to go into detail, I just want to take this time 
to analyze one and, if I have time, two other provisions of 
this bill that deserve extensive analysis and discussion.
    Also, in title VIII, I think it is title VIII, is the 
criminalization of immigrants, including asylum seekers and 
others with valid claims for relief.
    Immigration laws and regulations include both civil and 
criminal penalties. Removal is normally a civil process that 
determines whether a noncitizen is present legally and whether 
any relief, such as asylum or humanitarian relief, is available 
under the law. Some knowing violations of immigration law--
immigrant smuggling, entry without inspection, failing to 
register when required--are criminal. Section 203 of this bill 
would create a new Federal crime of illegal presence defined 
broadly as any violation, even technical, of an immigration law 
or regulation, even without any intent to violate the 
immigration laws.
    In essence, it makes every immigration violation, however 
minor, into a Federal crime. In fact, it makes actions which 
are unavoidable into Federal crimes. For example--and here are 
some consequences that I don't think have been anticipated or 
thought through--penalizing immigrants with valid asylum claims 
or other valid claims for relief come out from this provision.
    The bill would turn into criminals noncitizens whose claims 
for immigration benefits have not yet been decided.
    Persons fleeing persecution or on a temporary visa may have 
their visa expire before their asylum claim is adjudicated. 
Under the bill, they would become criminals subject to 
imprisonment for a term of years even if they are subsequently 
granted asylum. They would be subject--they would be criminals 
and subject to imprisonment for being here illegally because 
the Government delayed in granting them their valid asylum 
claim.
    Other forms of relief, like temporary protective status 
granted by countries that suffer natural disaster, give 
temporary relief from deportation. The Government's decision to 
grant asylum or temporary protective status or other forms of 
relief would not necessarily wipe away the consequences of even 
a technical period of illegal presence, which would be 
criminal, despite the fact the immigrant never intended to 
violate any law and applied for relief in the correct manner.
    Another consequence is that the overbroad definition of 
``smuggling'' in section 202 could criminalize the work of 
churches or other refugee organizations acting in good faith. 
Harboring anyone who is illegally present is a crime, even with 
no intent of financial gain, even if that person has a valid 
asylum claim ultimately judged valid. An asylum seeker with a 
valid claim may be illegally present for some period, which 
would make it criminal for churches or refugee organizations to 
try to help them, treating such organizations the same as 
smuggling organizations.
    I don't think, Mr. Chairman, that this is what the authors 
of the bill intended. I hope it is not. I don't think so ill of 
them that I think they would intend this.
    I think this bill has not been properly thought through in 
this provision as among others, and I would hope that this bill 
would be withdrawn from consideration today until it can get 
proper venting, proper changes by its sponsors when they agree 
with the people who comment, proper debate when they don't 
agree; and so we don't rush through a very, very important 169-
page bill which has----
    Ms. Lofgren. Will the gentleman yield?
    I just want to point out another provision that really 
snuck in there, and that is in section 613. There is a U.S. 
Supreme Court case that basically recognizes that there are a 
lot of reasons why individuals could plead guilty to a criminal 
act.
    [11:00 a.m.]
    Ms. Lofgren. I will give you an example. You are 20 years 
old. You have been arrested for possession of marijuana. You 
are a kid. Your defense lawyer recommends that you plead guilty 
because you don't have the money and you are not going to serve 
in any time in jail, and so you do that. Thirty years later, it 
becomes a problem immigration-wise.
    The Supreme Court said that unless you understood the 
immigration implications at the time you made the plea, you 
could not use that provision in the immigration proceedings. 
There needs to be notice so that the plea is actually made 
intentionally.
    This section basically says that State courts no longer 
have jurisdiction to run their own business. That is 
unprecedented that the Federal Government would step in to the 
State courts and start telling judges that they cannot modify 
sentences based on what they have found in their own courts 
based on their own records.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Ms. Waters. Mr. Chairman----
    Chairman Sensenbrenner. The Chair will announce that the 
Members of the majority are committed to stay here as long as 
it takes to get this bill done and put Members of the minority 
on notice that we will be here until there is a final vote.
    For what purpose does the gentlewoman from California seek 
recognition?
    Ms. Waters. I seek recognition to strike the last word.
    Chairman Sensenbrenner. Gentlewoman is recognized for 5 
minutes.
    Ms. Waters. Mr. Chairman, as I have said to you, I think, 
on more than one occasion, I am prepared to support a 
reasonable bill to deal with the immigration problem that we 
have in this country.
    I was impressed upon first learning about the bill, because 
you had taken a giant step in dealing with the employers and 
stepped out willing to provide some sanctions. I thought that 
that was courageous on your part, given that many of the 
employers would like to have it both ways. However, being the 
fine legal mind that you are, Mr. Chairman, I am a bit 
surprised at some of what I am finding in the bill.
    First of all, you know that there are many of us who have 
problems with continuing to bog down the legal system with 
mandatory minimum sentencing, and here you have created--in one 
bill--more mandatory minimum sentences than perhaps we created 
in all of the last 2 years. In section 202 alone, you have 
created eight mandatory minimum sentencing, that is in title 
II, and it goes on and on and on in some of the other sections.
    I know, also, not only are you a great legal mind but you 
are a bit of a fiscal conservative. Where does the money come 
from to expand our court system to deal with all of the 
mandatory minimums and other things that you have put into this 
bill? I don't know if you gave that consideration.
    But I guess you did, because you want to take some money 
from first responders. Now you know that your President is in 
this war on terrorism, and you know that he set up homeland 
security. And one of the most important aspects of that is to 
be able to fund first responders in our cities so that our 
firemen and our police officers and others will be trained and 
prepared and have the equipment that they need to deal with 
terrorism.
    What is going to happen when we have one of these alerts 
where everybody is put on notice and they have to move, they 
have to do certain things? Surely, Mr. Chairman, you did not 
intend to rob our cities of money for first responders in this 
tremendous fight on terrorism that we are engaged in in order 
to deal with the immigration problem in the way that you are 
trying to do.
    In addition to that, there are some other issues in the 
bill that I think you could give better consideration to. Now, 
I know, as my colleague from California was discussing, the 
fact that we have some countries that would not allow reentry 
of removed aliens. But you go a bit far and you imply in this 
bill that if they do not take a person back that we are trying 
to send back that we are going to close our borders forever to 
that country and not allow any persons from that country in 
under any circumstances.
    Surely you don't mean that; and I think perhaps, in your 
haste to do something good, you have overlooked the fact that, 
first of all, whatever we do has got to be constitutional.
    Second----
    Ms. Lofgren. Would the gentlelady yield?
    Ms. Waters. I would yield to the gentlelady.
    Ms. Lofgren. I would turn back to the St. Cyr case, the 
U.S. Supreme Court case, because I think that decision is based 
on due process in the Constitution, is not going to be 
overturned statutorily, number one. But I think it is important 
to note that it is not about undocumented or illegal aliens, it 
is about legal residents, people who have gone through all the 
hoops, who have obtained their legal residency and who have 
been caught up either when they are trying to reenter the 
United States after a trip or they have applied for U.S. 
citizenship and got caught up on this. So this has no place in 
a bill about undocumented aliens, and it also clearly fails to 
meet the due process provisions in the constitution.
    It purports to overturn the St. Cyr case. I don't think it 
can. But it is also very unfair to Americans who are married to 
these legal residents who really need an opportunity to have 
their situations reviewed by a State court judge.
    Ms. Waters. I think you is absolutely correct, and I think 
it is just an oversight on Mr. Sensenbrenner's part.
    Now this mandatory detention for all illegal entrants until 
they are removed, where are you going to put them? I don't see 
where.
    Chairman Sensenbrenner. Gentlewoman's time has expired.
    Chair asks unanimous consent that the remainder of the bill 
be considered as read and open for amendment at any point. And 
is there any objection?
    Hearing none, so ordered.
    Ms. Wasserman Schultz. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Florida seek recognition?
    Ms. Wasserman Schultz. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    Mr. Chairman, all of us here today on both sides of the 
aisle clearly recognize and know that immigration reform is 
necessary. Hundreds of thousands of illegal aliens cross our 
borders each year. Just using my own street as an example, four 
of the seven families that live on my own street are recent 
legal immigrants to this country.
    Although these men and women come to America in search of a 
better life for themselves and their families, they obviously 
place a great burden on Federal, State and local governments. 
The Republican leadership has said many times that Congress 
should take up comprehensive immigration reforms that address 
not only enforcement but also allow for an adjustment of status 
for current undocumented immigrants.
    This legislation does no such thing. In fact, this bill's 
primary focus is on border security and interior enforcement. 
We need a bill, if we are going to really address this problem, 
that is much broader in scope, one that offers real solutions 
and not another simplistic approach to a complex problem.
    I commend to you comments last year from my Governor, my 
State's Governor, Florida's Governor Jeb Bush, with whom I 
rarely agree on anything, but I did agree with him on this. He 
said about illegal immigration last year, he said, we shouldn't 
allow them to come into the country to begin with, but once 
they are here, what do you do? Do you basically say they are 
lepers to society, that they don't exist? He said a policy that 
ignores them is a policy of denial.
    Next year is an election year. We all know the stakes that 
are riding on this election. However, the Nation's immigration 
laws are too far reaching to simply rush through the 
legislation so that we can say we did something on immigration.
    Mr. Chairman, as a Nation, we must address this complex 
problem, but we need to do this right. We must take an approach 
that addresses the Nation's illegal immigration problem more 
thoroughly, including guest worker provisions, programs to 
increase legal immigration, and policies that recognize that 
undocumented immigrants are here. They are here. There is no 
question that they are here, and then address some of the 
issues that result from their presence.
    Until we can take a systematic approach and not take a 
simplistic approach to this very complex problem, then I cannot 
support this legislation.
    Thank you, and I yield back the balance of my time.
    Chairman Sensenbrenner. Are there further amendments to the 
bill?
    Mr. Cannon. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Cannon. It is amendment Cannon .054.
    [The amendment follows:]
      
      

  


    Mr. Cannon. This is a technical amendment. Mr. Chairman, if 
I might just begin to explain this while it is being passed 
out.
    Chairman Sensenbrenner. A point of order is reserved by the 
gentleman from California. The gentleman is recognized for 5 
minutes.
    Mr. Cannon. This is a technical amendment. Last year, the 
House and the Senate passed H.R. 4306, which allows for 
electronic storage of I9 forms by voice vote and was signed 
into law. This amendment merely reinserts the language that an 
employer may keep I9s in electronic format.
    This legislation enhances security and provides greater 
privacy protection for employees by electronic computer storage 
with a backup system. It is far more secure than paper-based 
systems in which paper documents can be lost, damaged, misfiled 
or accessed by unauthorized individuals.
    This language is inadvertently, I believe, dropped from the 
bill; and I am adding back what is already existing law so as 
not to cause any confusion about the intent of Congress. I urge 
the support of this amendment by my colleagues and yield back 
the balance of my time.
    Chairman Sensenbrenner. Does the gentleman from California 
insist on his point of order.
    Mr. Berman. No.
    Chairman Sensenbrenner. The gentleman from New York, for 
what purpose do you seek recognition?
    Mr. Nadler. Strike the last word on the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    I think that as far as I can judge, in not having had a 
chance to read the bill, this is a fine amendment. But it does 
give me the opportunity to comment on another provision of this 
bill, on the court-stripping provisions, which otherwise might 
not see the light of day in our rather abbreviated 
consideration of this bill. Again, these are provisions that 
ought to be looked at in detail and not in a 20-minute period 
or even a 5-minute period in a Committee meeting.
    Because of court-stripping legislation passed 10 years ago 
and again earlier this year, current law severely restricts 
access to the courts for many kinds of immigration claims, 
including class actions and even ordinary review for many 
individual claims. As a result, immigrants who allege the 
Government acted illegally in the removal process have only one 
shot at review directly in the Circuit Court of Appeals, many 
under very narrow scope of review in current law.
    In 2002, Attorney General Ashcroft worsened this problem by 
severely limiting administrative review by the Board of 
Immigration Appeals, leading to a truncated, one-judge review 
for most appeals, a review that does not satisfy elementary due 
process. This bill would worsen that trend by bringing second 
class review into the last avenue of relief, the Court of 
Appeals, and by manipulating the system to ensure no review at 
all--no review at all--for many immigrants. No review at all 
for temporary residents. Legal nonimmigrants--students, guest 
workers, et cetera, are effectively deprived of any review from 
a deportation order because they must sign a waiver of their 
right to an administrative hearing or judicial review to obtain 
a visa.
    Under this bill, to get a visa, you have to waive your 
rights. Under current law, such waivers apply only to tourists 
and other short-term visitors who qualify for travel under the 
visa waiver program. Revoking the visas were made unreviewable 
even by habeas corpus with only a systemic challenge to the 
statute available before the Court of Appeals in the District 
of Columbia Circuit, even if you are in Texas or California or 
somewhere else.
    For those who still have a right to go into Federal court, 
a single appeals court judge is required within 60 days to 
issue a court certificate of your ability or the case is 
automatically dismissed. A similar one-judge system for the 
Bureau of Immigration Appeals has led to numerous mistakes and 
a string of reversals.
    Expedited removal without a lawyer or a hearing, which the 
bill mandates, would apply to all noncitizens within 100 miles 
of the border and also forbids any review by a Federal Court.
    Finally, many decisions, even decisions made with secret 
evidence, are made unreviewable, even by habeas corpus. The 
bill makes a number of decisions expressly unreviewable. For 
example, the Government's decision using secret evidence that 
an applicant for naturalization is involved in a terrorist 
group or has endorsed or espoused terrorism cannot be reviewed 
by a court, cannot be reviewed by the Bureau of Immigration 
Appeals. The bureaucrat's decision is final. And as we saw in 
that case in Florida, the jury disagreed.
    One thing the authors of this bill should know by now is 
that not every bureaucrat is right 100 percent of the time. I 
would have thought the Republicans would know that. But this 
bill says every bureaucrat is always right and never needs to 
be reviewed.
    Many decisions regarding voluntary departure agreements, 
deportation under existing deportation orders--even where 
Government's record keeping mistakes led to its entry--are 
unreviewable.
    Mr. Chairman, it is a fundamental denial of the basic 
liberty concepts of this country, of the basic due process 
concepts of the country, to allow bureaucrats to deport people, 
to violate their rights with no review in court, with no review 
even by an immigration judge. It is simply beyond the pale--or 
it ought to be beyond the pale--and this ought not to be in 
this bill.
    Just one more example of what an ill-considered bill this 
is and why we should not be considering this 169-page bill on 
less than 2 days notice at this time.
    I am not terribly hopeful that anything we say here makes 
any difference, because this is all a political ploy, as we 
know. But, nonetheless, it would be nice if this Committee made 
a semblance of acting with some responsibility of actually 
considering these points on their merits. But I suppose that is 
too much to ask.
    I yield back.
    Ms. Jackson Lee. Mr. Chairman----
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas seek recognition?
    Ms. Jackson Lee. I seek to strike the last word.
    Chairman Sensenbrenner. Gentlewoman is recognized 5 
minutes.
    Ms. Jackson Lee. I thank the Chairman very much.
    Because Mr. Cannon took the opportunity to share with us 
how enhanced technology could be an effective tool in the 
collective efforts that all of us are trying to achieve, and 
that is a fair and just and comprehensive immigration system, I 
wanted to make note of my considered, I guess, consternation 
and frustration with ignoring of the front-liners, if you will, 
in this bill and even though there may be some representation 
that the issue is a question of germaneness, but that is of the 
Border Patrol agency and agents.
    There are any number of us who have walked the line, if you 
will, and that is--of the southern border and the northern 
border, but in particular the southern border--and have seen 
the Border Patrol agents day after day and night after night 
suffer with the half staffing, if you will, of the necessary 
equipment they need, the technology that they need to be able 
to perform their jobs.
    Interestingly enough, the Republican efforts both in 
Homeland Security and, frankly, here clearly have ignored I 
think key elements of answering the question of the massive 
illegal immigration that many are concerned about and much of 
what we know is economic.
    But no one seems to wants to sit down and analyze what do 
the Border Patrol agents need? They do want to analyze let's 
see how the Department of Defense can violate the seam between 
civilian and defense and engage in the issue of immigration. 
They do want to break the bank of local law enforcement and 
take them away from protecting school children and finding 
sexual predators and making sure that the banks are operating 
than put them on the border.
    It is to me inconsistent to have strong enforcement and you 
don't have provisions for recruitment, scholarships for the 
recruitment of Border Patrol agents. You don't have enhanced 
certifying of their positions, advancing them at a civil 
service level, pension relief. You don't have helicopter and 
power boats added to their arsenal, if you will, motor vehicles 
where they suffer a severe shortage and have to share the 
vehicles that are down at the border, portable computers which 
are mostly in every local law enforcement. Now you will see 
local law enforcement with hand-carrying or car-carrying 
computers, radio communication, that does not exist, handheld 
global positioning system and, most of all, simplistically, 
night vision equipment.
    If any of you have stood at the borders as I have done in 
the night watching Border Patrol agents, they are doing their 
best at a disadvantage. Body armor that, frankly, they probably 
have to buy for themselves. Simplistic responses to ensuring 
that the front-liners of immigration, regulation and control 
are well-trained, well-skilled and well-equipped.
    I don't know what we are doing if we ignore that component 
of the work that we have to do. H.R. 4044 would offer that. I 
had hoped that we would be able to merge in a bipartisan manner 
to look at these issues.
    But if we are talking about rapidly responding to the 
crisis and we overlook the Border Patrol agents and we focus on 
the Department of Defense to give us the strategy, might I say 
that they are, I would hope, filling up their days with a 
strategy on Iraq that is crying out for some reasonable 
response which at this time we are looking for.
    But I don't see how adding another major component--
something as large as the Department of Defense--to engage in 
this process, when we have been begging and crying for 
comprehensive reform.
    I would hope, again, that in the waning hours of this 
session that we will have an opportunity to take this bill into 
a room and truly address the comprehensive needs of immigration 
in America. But I am disappointed that we can't find some way 
to give the necessary tools to an agency that has been 
maligned--not of their own doing but because they have not been 
given both the staffing, the detention facilities--reasonable 
detention. Not as it has been crafted in this bill. And they 
have certainly have not been given the equipment and I would 
also say the opportunities of recruitment and professional 
training to add to the excellent job that they are attempting 
to do. And I have seen them do some good work.
    So I am glad that Mr. Cannon has added technology in a 
small way, but I was certainly disappointed----
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Questions on the amendment offered by the gentleman from 
Utah, Mr. Cannon. Those in favor will say aye. Aye. Opposed no. 
No.
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments?
    Mr. Cannon. Mr. Chairman. 
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Utah seek recognition?
    Mr. Cannon. I have two amendments. I would like unanimous 
consent to offer them en block. Those are amendments Cannon 055 
and 056.
    Chairman Sensenbrenner. Clerk will report the amendment.
    The Clerk. Amendment to H.R. 4437 offered by Mr. Cannon of 
Utah.
    Page 149, beginning line 17, strike clause 3.
    Amendment to H.R. 4437 offered by Mr. Cannon of Utah.
    Page 152, strike lines 20 through 25 and redesignate 
subsequent paragraphs accordingly.
    Chairman Sensenbrenner. Without objection, the amendments 
will be considered as en bloc. Hearing none, so ordered.
    [The amendments follow:]
      
      

  


      
      

  


    Chairman Sensenbrenner. The gentleman from Utah is 
recognized for 5 minutes.
    Mr. Berman. Mr. Chairman, I do have a reservation.
    Chairman Sensenbrenner. Gentleman from California reserves 
a point of order.
    Gentleman from Utah is recognized for 5 minutes.
    Mr. Cannon. Thank you, Mr. Chairman.
    The first amendment would strike the mandatory verification 
on existing employees.
    I want to just start off by saying how much I appreciate 
the Chairman's incredible work on this issue over a long period 
of time and that in an environment where there has been a great 
deal of other activity, including the Patriot Act which has 
taken, I think, an obscene amount of time; and so I appreciate 
his work on both efforts. But in the case of the basic pilot 
program the new national employment verification system is a 
good concept. I support that, and I hope it will work.
    I can support the prospective use of the program, but I 
have concerns about a national mandate applying a program that 
has been questioned by the agencies to at least 8 million 
employers and 140 million employees. The burden that is created 
by mandating that every employer in the country use the 
employment verification to reverify the work authorization of 
some 140 million workers is more than extremely unfair to the 
vast majority of law-abiding employers. It would place a 
significant burden on businesses of every size because there 
are too many unanswered questions about this program.
    The GAO studies on this subject earlier this year in August 
and June 2005 indicated that if the basic pilot program is 
expanded, several weaknesses in the program, including its 
inability to detect fraud and DHS delays in entering data into 
their databases, could become more significant and adversely 
affect a greater number of employees and employers.
    DHS responded to the GAO study by saying the testing of 
alternative of pilots is important; and USCIS believes it is 
important to test and evaluate alternative employment 
verification systems before we go about creating a new, 
expensive mandatory national employment verification system.
    CIS officials told GAO that the current basic pilot program 
may not be able to complete timely verifications of work 
eligibility if the numbers of employers using the program were 
to significantly increase. We have about 3,600 employers using 
the system now, as opposed to 8 million.
    There are some fundamental problems inherent in the basic 
pilot that are not yet worked out. The basic pilot cannot 
detect identity fraud. If an unauthorized worker presents valid 
documentation that belongs to another person authorized to 
work, the program would likely find that person authorized to 
work.
    Most importantly, we have existing laws on the books that 
penalize employers who are hiring unauthorized workers. IRCA 
provided sanctions against employers who do not follow the I9 
employment verification process.
    Under current law, employers are required to reverify the 
employment eligibility of individuals whose work authorization 
has expired to determine whether the are authorized to continue 
to work. Employers who fail to properly complete, retain or 
present for inspection their I9s face civil fines ranging from 
a $1,000 to $20,000 for violation, and employers who knowingly 
hire or continue to employ unauthorized aliens also face 
increased fines. Employers who engage in a pattern of knowingly 
hiring illegal aliens are subject to criminal penalties, 
including imprisonment.
    The Social Security Administration reports no match letters 
to the IRS, which then investigates and imposes fines for 
returns filed to the IRS that contain a missing or incorrect 
taxpayer identification number.
    If the existing laws and fines are not being adequately 
enforced, then let's have a debate about that before we step up 
a whole new program of possible unintended consequences for the 
burdens it places on business and employers.
    On the second amendment that I submitted en bloc, this 
section would eliminate the dramatic increase in penalties for 
what are pure paperwork violations. The current penalties range 
from $100 to $1,000. In H.R. 4437, these penalties would 
increase substantially from a thousand minimum to $25,000 
maximum for not checking the appropriate box or signing the 
form.
    We are here today to discuss immigration reform and not 
impose paperwork penalties on every American. The question is, 
why we are increasing penalties 2,500 percent for simple 
paperwork mistakes that may or may not have any connection to 
immigration problems? This penalty is not for those who are 
here intentionally or intentionally hire illegal workers or 
those who recruit illegal workers.
    My amendment keeps the language and protects against 
fraudulent uses. If someone is gaming the paperwork, they can 
be prosecuted under the fraud and conspiracy laws which carry 
criminal penalties.
    I understand that the bill contains a good-faith compliance 
exception before the imposition of this penalty would occur. 
But that exception does not take into account that this section 
is overbroad and really doesn't work with our task at hand, 
which is to reform our immigration system.
    We are adding huge civil penalties to all businesses simply 
for clerical errors. You can be penalized for failing to check 
the right box or you can be penalized for failing to sign the 
form.
    I urge my colleagues to support both of these amendments 
and vote for them en bloc. And with that, I yield back, Mr. 
Chairman.
    Chairman Sensenbrenner. The time of the gentleman is 
expired.
    The Chair recognizes himself for 5 minutes in opposition to 
the amendments en bloc. These amendments strike the guts of the 
bill and it has this bill and our country go down the slippery 
slope of the mistake that was made in 1986 in the Simpson-
Mazzoli bill, and that was lack of adequate verification of the 
eligibility to work for people who applied for jobs in the 
United States.
    The reason Simpson-Mazzoli failed--and we have more 
undocumented aliens in the United States today than we ever had 
in the early 1980's--is because there was not a way for 
employers to check whether somebody who was asking for a job 
was legally in the country and eligible to work.
    The first amendment that the gentleman from Utah has 
offered strikes the necessity to check the employment 
eligibility of already existing workers.
    Now the result of his amendment, if it becomes the law, is 
going to create an indentured servant program for undocumented 
aliens. Because if they are working for an existing employer 
and they are undocumented, they can't get a new job because 
their Social Security number would be caught up in the employer 
verification system. That is not the way we should go about 
dealing with this issue.
    The second one, relative to paperwork violations of--the 
gentleman from Utah seems to think that these violations are 
trivial in nature. They really are not. Because it does 
require--the current immigration law does require employers to 
examine the work authorization documents in each new hire and 
attest on the I9 form that the new employee is not an 
unauthorized alien, and the problem is that the fines don't act 
as a sufficient deterrent for them to do the job right.
    Now, in 1996, we recognized that employees should not be 
penalized for mere technical violations or mistakes, and there 
is a good-faith compliance issue. What we are dealing with with 
these penalties is not the people who are attempting to comply 
in good faith but the bad actors. Now the bad actors who hire 
scores or maybe even hundreds of undocumented aliens in effect 
are the 21st century slave masters. I don't have any soft spot 
in my heart for them, because the 21st century slave masters 
are operating in just as immoral a manner as the 19th century 
slave masters were.
    I would ask that the Members vote against the Cannon 
amendments en bloc and yield back the balance of my time.
    Mr. Berman. Would the gentleman yield?
    Chairman Sensenbrenner. Gentleman from California, Mr. 
Berman.
    Mr. Berman. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. Gentleman is recognized for 5 
minutes.
    Mr. Berman. I hate opposing an amendment by my friend who I 
have worked on these issues with so much over the past few 
years, the gentleman from Utah. But my comments are 
particularly directed to the gentleman from California, Mr. 
Lungren. Think back to 1986 and that slippery slope the 
Chairman made reference to, where the problem in this bill 
isn't the idea of verification. It is the absence of an earned 
adjustment program, a guest worker program, the kinds of 
provisions that are in Kolbe-Flake and Cornyn-Kyl and Kennedy-
McCain and that are being promoted by President Bush. It is the 
absence of those provisions.
    What you do with this amendment is you go back to the 86 
formulation of we criminalize the presence of these people in 
this country. We make it a new crime in the bill, but the 
employer can continue to employ these criminals as long as he 
wants, no burdens on the employer, if he has somebody employed.
    By the way, every grower who hires--in an industry which is 
predominantly filled with undocumented workers, every grower, 
every time it is a peak season, is rehiring somebody, so this 
amendment doesn't even protect that particular employer.
    Don't fundamentally because of the--the way to correct this 
bill isn't to give the employers more free passes. It is to 
deal with the presence of 11,000,000 people in this country who 
are not authorized to work at the present time, to correct that 
problem and to provide future courses of workers with adequate 
wage protections so they don't displace the jobs of U.S. 
workers where you have temporary shortages in the future. That 
is where the amendment should be coming to, not destroying the 
verification process which is part of a strategy of dealing 
with the problem of illegal immigration. We made that mistake 
in 1986. We are about to do it again.
    Ms. Lofgren. Would the gentleman yield, Mr. Berman?
    I just want to support your suggestion of opposing the 
amendment in a slight variation of my thinking on yours that 
really this whole section needs a more comprehensive approach 
than can be accomplished in this amendment, and I have reached 
the same conclusion as you that we cannot support it.
    I thank the gentleman.
    Mr. Berman. Just to reclaim my time. The verification 
provisions aren't adequate as they are now. There needs to be 
walls protected to make sure the information is not misused, 
that the privacy of citizens is not violated. There are a 
number of mistakes in the verification process, how it gets 
phased in, how it gets implemented. These are important 
questions which couldn't possibly have been dealt. We haven't 
had the kind of hearings and advice from Homeland Security and 
the Social Security Administration on how this will be done.
    But to carve a loophole out for existing employees and say 
the employer doesn't have to verify them is essentially just 
going back to taking the burden off of the employers, 
criminalizing the aliens and inducing employers to keep on 
doing the same old thing all over again.
    Mr. Cannon. Would the gentleman yield? I want to make a 
couple of comments.
    I think the rationale behind what we would be doing here is 
that people who are here illegally can't get another job 
because of the nature of the verification program. So I don't 
think of that in terms of indentured servitude but rather an 
opportunity to get straight with the law or leave. And, at the 
same time, it puts an incredible burden on the employer.
    I don't think that--there are some bad actors. Without any 
question. I want to agree with the Chairman. There are some bad 
actors out there. But most employers just want to get their 
product out the door, and they want to be able to do it in a 
way that they can make a profit. And that is not bad. In fact, 
the free market system is the basis for what we do in America. 
So I would urge the--pardon me----
    Mr. Berman. Let me reclaim my time--because it is going to 
expire in a second--to say then offer an amendment that 
provides some kind of earned adjustment and guest worker 
status. We can debate whether you have to leave the country or 
not. We can have a good discussion about that. Do something to 
correct the problem. Don't fall back to the 1986 trap of 
attempting.
    Mr. Cannon. The '86 was a trap where we had penalties that 
were too great to be enforced.
    Mr. Berman. The penalties were unenforceable because we 
said the employers----
    Chairman Sensenbrenner. Time of the gentleman from 
California is expired.
    Does the gentleman from California insist on his point of 
order.
    Mr. Berman. No, I don't.
    Chairman Sensenbrenner. The gentleman--other gentleman from 
California, Mr. Lungren, is recognized for 5 minutes.
    Mr. Lungren. Thank you, Mr. Chairman. I move to strike the 
last word, and I rise in opposition to the amendment.
    As I listen to the Chairman's reference to the 1986 Act as 
well as my friend from California's, I am reminded of the old 
saying that victory has many fathers, while failure is an 
orphan. I guess I am the only one around here who would admit 
to voting for the law back in 1986.
    Mr. Berman. I voted for it, too.
    Mr. Lungren. I am glad to hear that. Although you are 
probably hurting me with my point with my friends on this side 
by saying that.
    Look, we thought we had reached a balance in 1986. We 
thought we were doing something with the phenomenon that 
existed of those who were in this country illegally at this 
time and also attempting to try and enforce the law going 
forward. A critical part of that was employer sanctions.
    It is not a partisan failure. It is a bipartisan failure. 
Democratic and Republican administrations have failed to 
enforce the employer sanctions, in part because the will of the 
people wasn't there. I think the will of the people is now 
there, and I think we also have to create a system that works.
    Back in 1986, Sam Hall, the Democratic Congressman from 
Texas, offered an amendment to actually establish such a 
verification system. I voted against it at that time because I 
didn't think it was practical, that is, you can actually do it. 
I think it can be done now. I think the pilot project has 
proven that it can work; and if it does--if it has proven its 
ability to work, then I think we ought to enforce it.
    I agree with the gentleman very much on the fact that we 
will ultimately need a guest worker program--whatever you want 
to call it. It is a program of foreign workers that will 
actually be a regulated system that the United States 
determines the parameters of, which is far better than having 
the illegal system that we have now. And I think, in fact, the 
employer community will demand that. They will accept, I 
believe, sanctions of this type, if they have that kind of 
program that meets particular needs.
    Mr. Berman. Will the gentleman yield just on that point?
    Mr. Lungren. No, I won't. I don't have enough time right 
now.
    On that point, I also realize the political realities, that 
sometimes you have to do certain things that not all people 
agree with, but you can get a consensus for a step. So I am not 
hiding the fact that I believe that, ultimately, in order to 
have all of this come together, you are going to need some sort 
of system. It can't be an amnesty. It can't be something like 
that. It has to be something different. And I think we have to 
have an ongoing system.
    But with respect to this bill, which goes to the question 
of border security and getting some control over the situation 
that exists now, I think the components parts that are in there 
are, in fact, reasonable. If you look at the phase-in of the 
mandatory nature of this section of the bill, it is over a 
number of years; and there is certainly adequate time for us to 
be able to ensure the other parts come together.
    I just would say that, as one who was there at the 
beginning, in 1986, of our attempt to try and reach a balanced 
program, employer sanctions were integral to our attempt. They 
have not worked for a number of reasons. They would be made 
impossible to work I think if we adopted the gentleman from 
Utah's amendments here, not that he intends that they not work. 
And I understand that he believes, as you do, we do need to 
have some sort of verified foreign worker program.
    But, please, we are serious about the problem that 
confronts us right now with illegal immigration. If we are 
truly serious about it, employer sanctions have got to be a 
component. We have major parts of our problem. One is the 
magnet of employment that pulls people here. No doubt about it. 
We have to do something about it.
    The other half I think is the question of birthright 
citizenship. We are not going to deal with that at this time. I 
may offer an amendment to that and then withdraw it for 
purposes of discussion. But that is one half of the problem, I 
believe.
    At least let us be honest. American people really do 
believe, Democrats, Republicans, Independents, no matter what 
their stripe, we ought to do something about the issue. If 
anybody can tell me how we deal with the magnet of employment 
without having an employer sanctioned program that actually is 
capable of work, I would like to hear it; and I yield to the 
gentleman from Utah if he can tell me that.
    Mr. Cannon. Thank you.
    I think you have said there is a political will. I think 
that the penalties are high enough if we apply the penalties. 
So raising penalties, especially in areas where its paperwork 
is difficult, but doesn't the gentleman also feel that over 
time, if you are verifying new employment, we can do it do 
without shaking down American businesses to get to identify for 
us every person that is here illegally?
    Mr. Lungren. I will be happy to reclaim my time.
    I don't view it as shaking down American business. This is 
analogous to a situation I faced when I was trying to enforce 
Proposition 65 in California. I had the wine industry come to 
me to beg me to sue the entire industry over the question of 
the presence of lead as a result of the caps they used to put 
on wine bottles, and the reason they asked for me to sue them 
is they thought that if they had an overall comprehensive 
approach as a result of a settlement----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Lungren. One additional minute?
    Chairman Sensenbrenner. Without objection.
    Mr. Lungren. And the point was, as long as they all felt 
they were covered by the same laws, they were all free to do 
what they wanted to do, which was to change the way they put 
caps on their wine bottles and get rid of the lead that leached 
in wine bottles.
    When I talk to most employers, they say to me, look, if you 
have a law that works, I will follow it. But they all tell me 
it is a joke right now. They say, you give me these documents. 
You tell me I can't discriminate again people for other 
indicia, so I don't. And the document may, in fact, be phony. I 
am not an expert on that. But you haven't given me anything to 
rely on. If you would give me something to rely on, I would do 
it.
    I think most employers are scrupulous and want to follow 
the law. So I think it is----
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. Gentleman from California, Mr. 
Schiff.
    Mr. Schiff. Thank you, Mr. Chairman.
    As you can see, the discussion has gone on so long I have 
already moved up in seniority during the hearing. I would like 
to yield to my colleague from California, Mr. Berman.
    Mr. Berman. I thank the gentleman for yielding.
    I just want to contest one point in the otherwise very 
lucid and coherent explanation by the gentleman from 
California.
    Dan, you are wrong. If the employers can devastate the 
verification program, they won't be clamoring for a guest 
worker program because they will keep employing undocumented 
workers, illegal immigrants, whatever it is.
    The only reason they are clamoring for a guest worker 
program or for some kind of adjustment program is because they 
are getting nervous about their ability to rely on their 
existing workforce. The moment this amendment passes, they will 
be quite happy--this amendment and a few other refined 
amendments.
    But let me also make one other point, if the gentleman will 
continue to yield.
    Make no mistake about it. If this bill were to become law 
without an adjustment program, without a guest worker program, 
perishable fruits and vegetables in the United States 
disappear. The tourism and hospitality industries, massive 
disruptions. Home construction in many parts of this country, 
we know who is doing that. Don't kid yourself.
    When you say, well, sometime down the road we should do a 
guest worker program, you put in tough border enforcements and 
real verification, without that, and you are kissing away huge 
amounts of U.S. industries. And you know it.
    You haven't given us a coherent reason why you aren't doing 
a comprehensive approach like the President wants, like the 
Chairman has suggested in the end needs to be done, like you 
have acknowledged needs to be done. Why aren't you doing it at 
the same time so we don't go through that fundamentally massive 
disruption in our economy.
    Mr. Lungren. Would the gentleman yield?
    Mr. Schiff. I would be glad to yield.
    Mr. Lungren. In response to my friend, I would say I do 
support that; and you know, in 1986, I will agree we didn't 
create a perfect bill. If the gentleman had joined me in 1986 
in having a guest worker bill, we wouldn't be in the problem we 
are in today.
    Mr. Schiff. Reclaiming my time, I would be happy to yield 
to my colleague from California.
    Mr. Berman. I joined the gentleman in a good adjustment 
program for seasonal agriculture workers. The gentleman wanted 
a new, brassier program.
    Mr. Lungren. No, the guest worker program.
    Mr. Cannon. Would the gentleman yield? Mr. Schiff, would 
the gentleman yield? 
    Mr. Schiff. Yes, I would be delighted to yield.
    Mr. Cannon. The benefit of having time in our parliamentary 
system.
    Let me make the point again. This is about reducing one 
penalty, the penalty that relates to paperwork violations, 
which is going from $100 to $25,000.
    The second point--the second piece of the en bloc amendment 
is eliminating the requirement that employers who have already 
gone through the legal processes to identify their employees 
not be required to go through that--a new process, which, by 
the way, is not clear that it is going to work. And it is going 
to put them in the blocks, not DHS, whoever is creating the 
system.
    So I would, again, urge my colleagues to think about these 
amendments. These are amendments that will allow business to 
continue to operate thoughtfully and profitably without being 
jerked around by a system that is a little bit harsher than I 
think we actually would want, on reflection.
    Thank you. I yield back to you.
    Mr. Schiff. Reclaiming the balance of my time, I just 
wanted to state briefly that I concur with the sentiments 
expressed by my colleague from the San Fernando Valley. I think 
this issue ought to be addressed in a comprehensive immigration 
reform bill that addresses all the issues that Mr. Berman 
enumerated. I have no illusions about this bill in this form 
being passed into law, will be back at the same place next 
year. But I don't think this has been a productive exercise, 
and I yield back to the Chair.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. Does the gentlewoman from Texas 
wish to speak on the amendment?
    Ms. Jackson Lee. Yes, Mr. Chairman.
    Chairman Sensenbrenner. Then the gentlewoman is recognized 
for 5 minutes.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    I give credit to Mr. Cannon for making a valiant effort to 
unshackle businesses and relieve them of extraordinary 
requirements, $25,000 and paperwork. But, in doing so, I think 
that, again, I would have hoped our good friend would have 
joined us in the comprehensive approach and, I add, an 
additional aspect to the issue of the guest worker.
    My unreadiness and discomfort is that, even as we speak to 
the issue of the guest worker, it is not secure as it makes it 
way to the Senate. Because the guest worker program to be 
proposed in the Senate may be more of the Cornyn-Kyl approach, 
which is that individuals must leave the country first before 
they can ascertain their status or develop an opportunity to be 
a citizen.
    The issue of the gentleman from Utah is to unburden 
employers and unshackle the business community, because I am 
sure that they are in horror as they watch this particular bill 
pass through the process.
    But no one is responding to the question that, whether it 
be the efforts Mr. Cannon is making, they don't address the 
comprehensive need that I think needs both an earned access 
component and a guest worker and that we should be sensitive to 
any guest worker program that may ultimately turn into the 
leaving of the country. Because rooted families with homes and 
children in school will not be eager and will not participate 
in that aspect of a guest worker program.
    So I would rather have us join together with guest worker, 
earned access to legalization, if you will, with a recognition 
that it is not a reality to expect 11 million people to take a 
bus either to the north or the south or wherever they might 
have come to.
    Your amendment, Mr. Cannon, does well to try to relieve the 
business community of severe both pressures and enforcement, if 
we actually even enforce it, but it really doesn't go to the 
question of what you do with the people they are dealing with. 
That is why I think it has frailties and failures, and I would 
hope that maybe you would join us in looking at it in a more 
comprehensive manner.
    With that, I yield back.
    Chairman Sensenbrenner. The question is on the amendments 
en bloc offered by the gentleman from Utah, Mr. Cannon. All 
those in favor, signify by saying aye. Aye. Opposed, no. No.
    The noes appear to have it.
    Mr. Cannon. Mr. Chairman, rather than asking for rollcall 
vote, it sounded to me like there were two ayes, only mine and 
Mr. Chabot's, in that voice vote.
    Chairman Sensenbrenner. The Chair's hearing is not that 
particular. The noes have it, and the amendment is not agreed 
to.
    Are there further amendments? Are there further amendments?
    Gentleman from Virginia has an amendment. The Clerk will 
report his amendment.
    Mr. Scott. Mr. Chairman, I have an amendment, Scott VA 062.
    Chairman Sensenbrenner. Clerk will report the amendment.
    The Clerk. Amendment to H.R. 4437 offered by Mr. Scott of 
Virginia.
    Add at the end of title VI the following new section:
    Section 408. GAO study----
    Mr. Scott. Mr. Chairman, I ask unanimous consent----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Scott. I yield.
    Chairman Sensenbrenner. This amendment looks like a very 
constructive one, and the Chair is prepared to support it.
    Mr. Scott. I yield.
    Chairman Sensenbrenner. The gentleman yields back the 
balance of his time.
    The question is on the amendment offered by the gentleman 
from Virginia, Mr. Scott. Those in favor will say Aye. Aye. 
Opposed, no.
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments? Are there further amendments?
    Gentleman from Virginia, Mr. Scott.
    Mr. Scott. I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    Mr. Scott. Scott VA 061.
    Chairman Sensenbrenner. The clerk will report Scott VA 061.
    The Clerk. Amendment to H.R. 4437 offered by Mr. Scott of 
Virginia.
    Page 28, line 12, strike ``less than 3 years nor''.
    Page 28, line 19, strike, ``less than 3 nor''.
    Page 29, beginning----
    Mr. Scott. I ask unanimous consent that the amendment be 
considered as read.
    Chairman Sensenbrenner. Without objection so ordered.
    [The amendment follows:]
      
      

  


      
      

  


    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, just for the public interest, the last 
amendment created a GAO study to--in response to a report on 
National Public Radio questioning health care in our detention 
centers, and that study was adopted.
    Mr. Chairman, this amendment has to do with mandatory 
minimums, and it goes through and picks and chooses each of the 
new mandatory minimums in this bill. The reason we waived the 
reading of the bill is that the number of new mandatory 
minimums in the bill took more than a full page of striking 
this and that. So, Mr. Chairman, this removes in one fell swoop 
all of the mandatory minimums in the bill. It keeps the 
increased maximums in all of the bills, but by increasing the 
maximums we signal to the sentencing commission that they 
should consider increasing the guideline sentences. And when we 
do that, Mr. Chairman, the sentencing commission generally 
complies and adjusts the guidelines.
    The difference between a sentencing guideline floor and a 
statutory mandatory minimum is that other guideline 
considerations can be brought into account under the guidelines 
to allow appropriate sentencing for each individual case by the 
commission and the courts, rather than sentencing in the blind 
by Congress without the benefit of the facts and circumstances 
of the individual case or the individual sentence.
    Mr. Chairman, mandatory minimums have been studied 
extensively and have been found to disrupt the underlying 
sentencing scheme, to discriminate against minorities and waste 
the taxpayers' money when compared to traditional sentencing 
where the individual roles and culpabilities can be taken into 
account. It does nothing to those who deserve to be sentenced 
to longer sentences, but it unfairly penalizes those who 
deserve lesser sentences.
    The Judicial Conference has written Congress over a dozen 
times to point out, Mr. Chairman, that mandatory minimum 
sentencing violates common sense.
    Mr. Chairman, I want to repeat that.
    The Judicial Conference has written Congress over a dozen 
times to point out that mandatory minimum sentencing violates 
common sense.
    Mr. Chairman, the purpose of this bill is to strengthen 
enforcement of immigration laws and enhance border security. 
But it is hard to see how placing a mandatory minimum sentence 
on some cases after the people have been removed will do 
anything more than just clog up our overcrowded prisons with 
people whose crime may be nothing worse than trying to reunite 
with their families.
    Mr. Chairman, the passage of this amendment will do nothing 
to eliminate punishment. It will, however, provide that the 
punishment will be consistent with common sense. So I urge my 
colleagues to support the amendment.
    I yield back.
    Chairman Sensenbrenner. Chair recognizes himself briefly.
    This goes to the debate on mandatory minimum sentences that 
the Committee has had repeatedly for almost as long as I have 
been on the Committee, which is longer than anybody but my 
friend from Michigan who is seated to my immediate left.
    Let me just say that one of the more egregious mandatory 
minimums that the gentleman's amendment strikes is in the case 
where the offense involved an alien where the offender knew, or 
had reason to believe, that the alien was engaged in terrorist 
activity or intending to engage in terrorist activity. There is 
a mandatory minimum of 10 years there.
    I think everybody knows what their philosophical bent is on 
mandatory minimums. Mr. Scott is against them. I am in favor of 
them. I urge the rejection of Mr. Scott's amendment and yield 
back the balance of my time.
    Questions on Mr. Scott's amendment?
    All those in favor, signify by saying aye. Aye. Opposed, 
no. No.
    The noes appear to have it. A rollcall will be ordered.
    Those in favor of the Scott amendment, when your name is 
called, answer aye; those opposed will answer no. And clerk 
will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus.
    [no response.]
    The Clerk. Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    [no response.]
    The Clerk. Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa.
    [no response.]
    The Clerk. Mr. Flake.
    [no response.]
    The Clerk. Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    [no response.]
    The Clerk. Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher.
    [no response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    [no response.]
    The Clerk. Ms. Lofgren.
    [no response.]
    The Clerk. Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters.
    [no response.]
    The Clerk. Mr. Meehan.
    [no response.]
    The Clerk. Mr. Delahunt.
    [no response.]
    The Clerk. Mr. Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Ms. Wasserman Schultz.
    [no response.]
    The Clerk. Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Further Members in the Chamber wish 
to cast their votes?
    Gentleman from California, Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. Gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. Gentleman from California, Mr. 
Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa, No.
    Chairman Sensenbrenner. Gentleman from Massachusetts, Mr. 
Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. Gentleman from Arizona, Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Chairman Sensenbrenner. Further Members in the Chamber wish 
to cast or change their votes?
    If not, the clerk will report.
    Gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Chairman Sensenbrenner. Clerk will try again to report.
    The Clerk. Mr. Chairman, there are 12 ayes and 20 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    The gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. I have 
an amendment at the desk.
    Chairman Sensenbrenner. Clerk will report the amendment.
    Ms. Jackson Lee. 100.
    The Clerk. Amendment to H.R. 4437 offered by Ms. Jackson 
Lee of Texas.
    At the end of title II, insert the following:
    Section 210. Establishment of a special task force for 
coordinating and distributing information on fraudulent 
immigration documents.
    Ms. Jackson Lee. Mr. Chairman, I ask that the amendment be 
considered as read.
    Chairman Sensenbrenner. Without objection.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. I thank you very much, Mr. Chairman.
    Chairman Sensenbrenner. Will the gentlewoman yield?
    Ms. Jackson Lee. I will yield.
    Chairman Sensenbrenner. The Chair is happy to accept this 
amendment. It is a constructive addition to the bill. And I 
thank the gentlewoman for yielding.
    Ms. Jackson Lee. I thank the gentleman.
    It addresses the question of fraudulent documents and 
provides a singular database and as well as provides assessment 
of trends. And, with that, I yield back.
    Chairman Sensenbrenner. The question is on agreement of the 
amendment offered by the gentleman woman of Texas.
    All those in favor, signify by saying aye. Aye. Opposed, 
no. No.
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments?
    The gentleman from Indiana, Mr. Hostettler.
    Mr. Hostettler. Mr. Chairman, I have an amendment at the 
desk designated number 44.
    Chairman Sensenbrenner. Clerk will report the amendment.
    The Clerk. Amendment to H.R. 4437 offered by Mr. Hostettler 
of Indiana.
    At the end of title VII, add the following new section:
    Section 709. Sense of Congress.
    It is the sense of Congress that there is little----
    Mr. Hostettler. Mr. Chairman, I ask unanimous consent that 
the amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, my amendment would add an 
important sense of Congress to this legislation.
    In a hearing that the Subcommittee on Immigration, Border 
Security, and Claims held on May 4th earlier this year, we 
learned that there are no jobs that Americans will not do and 
that immigration--especially illegal immigration--has had a 
tremendous impact on the ability of many Americans to find work 
or improve their families' economic status.
    Steven Camarota, a researcher with the Center for 
Immigration Studies, found that, quote, by significantly 
increasing the supply of unskilled workers during the recession 
between 2000, 2004, immigration may be making it more difficult 
for similar American workers to improve their situation end 
quote.
    Paul Harrington is the Associate Director of the Center for 
Labor Market Studies and Professor of Economics and Education 
at Northeastern University in Boston. Professor Harrington 
testified at that same hearing that, quote, there is little 
empirical evidence to support the notion that new immigrants 
are taking large numbers of jobs that Americans do not want to 
do. End quote.
    On the contrary, Mr. Harrington's recent study on the 
impact of immigration on the American job market concludes 
that, quote, given large job losses among the Nation's teens, 
20- to 24-year-olds with no 4-year degree, black males and 
poorly educated native-born men, it is clear that native-born 
workers have been displaced in recent years. End quote.
    Before creating the guest worker program that we are 
considering maybe later next year, it is imperative that we 
remember that there are large numbers of unemployed Americans 
who do want jobs. The argument that there are jobs Americans 
just won't do is a false statement.
    For example, in job categories such as construction labor, 
building maintenance and food preparation, immigration added 
1.1 million adult workers between 2000 and 2004. But there were 
nearly 2 million unemployed adult natives in these very same 
occupations in 2004. About two-thirds of the new immigrant 
workers in these occupations are illegal aliens.
    In the area of construction specifically, for example, 24 
percent of the workers are immigrants, while there is a 12.7 
percent native unemployment rate.
    In the food preparation sector, 23 percent of workers are 
immigrants, while there is a 9.3 percent native unemployment 
rate.
    In farming, fishing and forestry, 36 percent of these 
occupations are comprised by immigrants, while there is an 
almost 12 percent native unemployment rate.
    Mr. Chairman, let's not forget these facts and figures as 
we contemplate the legislation before us and that we will 
consider later.
    I urge my colleagues to support this amendment and yield 
back the balance of my time.
    [12:00 p.m.]
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to strike the last word.
    Let me say that this is an interesting issue to debate. I 
believe that many people have strong views on the subject and 
there are many variations of those views on the subject of the 
impact of illegal immigration on the job market and on the 
unemployment rate, particularly amongst American workers. I 
think that as this debate goes forward, we ought to get more 
opinions and more empirical evidence on this.
    I would suggest to the gentleman from Indiana that his 
amendment is premature. I can give him a commitment that we 
will be looking into this issue in a little bit greater detail 
as time goes on and suggest that he withdraw the amendment at 
the present time. And I yield to the gentleman from Indiana.
    Mr. Hostettler. Mr. Chairman, I ask unanimous consent that 
the amendment be withdrawn at this time.
    Chairman Sensenbrenner. Without objection, so ordered. Are 
there further amendments?
    Mr. Berman. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. I seek recognition for purposes of seeking an 
advisory opinion.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes, although he might not get an answer.
    Mr. Berman. There is an interesting proposal that has been 
introduced by a distinguished Member of this Committee, Mr. 
Flake, along with Mr. Kolbe and Mr. Guiterrez, that provides a 
comprehensive approach to this issue. If one were to take--if 
one were to offer as an amendment the adjustment of the new H-
5B U.S. immigration visa program for people now in the U.S. and 
the guest worker titles of that provision and offer it as an 
amendment, would it in the eyes of the Chair be germane to this 
bill?
    Chairman Sensenbrenner. Probably not.
    Mr. Berman. Why not? This is a bill that covers a lot of 
different issues. Why isn't the whole INA open?
    Chairman Sensenbrenner. This is a bill that deals with 
border security. I have stated that we will be dealing with 
issues such as employment and guest workers at a later time. I 
think that we need to work a lot more on refining how we deal 
with this, and I can say that I think it is probably not 
germane but it definitely is not ripe. There is going to be a 
lot of discussion that will be had on the whole issue of the 
employment base in this country. I think, however, the border 
security issue is the one that is of top priority, as well as 
fixing the holes in the employment verification system 
developed following the passage of the Simpson-Mazzoli Act 19 
years ago.
    Mr. Berman. Mr. Chairman, if I may just continue this 
academic discussion a little longer. I understand if this were 
simply a bill on border security; but when you--as you 
indicate, this bill is about border security and holes in 
employer verification from the 86 bill, there were adjustment 
programs in the 86 bill, there were guest worker program 
changes in the 86 bill. Once you move beyond border security to 
verification, what is the basis for ruling--I don't want you to 
think I accept your argument that it would not be ripe, because 
one thing I feel very certain about is it would be ripe to 
offer it, but whether it would be germane I think is debatable. 
Why doesn't this cover so many other issues now that the whole 
INA would be open?
    Chairman Sensenbrenner. Well, the Chair can only rule on a 
specific amendment that is offered. The Chair has also stated 
that he supports a properly framed guest worker program. I 
think that we have got to make sure it is properly framed lest 
we go down the road of the mistakes made in the 1986 bill. I 
have not ruled out philosophically a guest worker program later 
on in the consideration of the entire issue of the immigration 
system and how it needs to be fixed. I am just saying that I 
don't think the time is ripe to be able to do it in the context 
of a border security bill.
    Mr. Berman. Well, but it is not just a border security 
bill, it is a verification bill. The consequences of 
legislating a mandatory verification system without dealing 
with the 11 million people in this country and future temporary 
worker needs in this country has devastating consequences. One 
thing I cannot understand is how one can accept that it is 
needed but it isn't needed, both at the same time.
    Chairman Sensenbrenner. Well, if the gentleman will yield 
further, the 11 million people who are undocumented are in this 
country illegally. We have to deal with that issue and figure 
out how to work through it.
    Mr. Berman. I agree, and that is exactly right. The border 
security issue for the most part is not about the 11 million 
people now in this country except insofar as it is an 
inducement for other members of their family to try to join 
them. It is about if we get a verification system that ends up 
disqualifying millions and millions of people now in the 
workforce, what is the alternative and how are we going to deal 
with the consequences of that? The two are inextricably 
related.
    Chairman Sensenbrenner. If the gentleman will yield 
further, I don't believe that they are as inextricably related 
as Siamese twins are joined, and that is why I am a believer of 
the philosophy that the camel's back can only have so many 
straws, and if we deal with this in one package, it will be 
much more difficult to get 218 votes to pass it.
    And the gentleman's time has expired. Does the gentleman 
wish additional time?
    Mr. Berman. No.
    Chairman Sensenbrenner. Are there further amendments? Does 
the gentlewoman from Texas have an amendment?
    Ms. Jackson Lee. Yes. It is amendment number 186. I intend 
to offer and withdraw.
    The Clerk. Amendment to H.R. 4437 offered by Ms. Jackson 
Lee of Texas:
    Amend section 402 to read as follows: Section 402, 
expansion and effective management of detention facilities. In 
general, subject to the ability of appropriations----
    Chairman Sensenbrenner. The gentleman from Texas reserves a 
point of order. Without objection, the amendment is considered 
as read and the gentlewoman from Texas is recognized for 5 
minutes.
    [The amendment follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Ms. Jackson Lee. Thank you, Mr. Chairman. Thank you for 
your kindness. As I indicated, I intend to offer and withdraw 
and hope my colleagues will consider this as we move toward the 
floor. The underlying bill has sections dealing with 
alternative utilization of facilities for detention beds. In 
that, we open the jailhouse doors, which may be a portion of a 
solution for those now new detainees, including more than OTM, 
and the raging numbers that will come and, of course, we 
indicate that the detention is mandatory, with little 
opportunity for release.
    This amendment is straightforward. It provides instructions 
to the Secretary of Homeland Security to design a program in 
consultation with nongovernmental organizations and academic 
experts in both the immigration and criminal justice fields in 
order to give some criteria and guidelines for the kind of 
facilities that we will be using.
    Those facilities will be holding the elderly, women, 
children, individuals who may be ill, maybe sexual predators. 
And to be able to utilize any form of a detention facility with 
no protections, no guidelines, no firewalls between those who 
would prey upon those victims or those subject to being 
victims, any of you who have gone to some of the commercial 
centers where detainees are, you will note that they are in are 
large open rooms, open bunk beds, and certainly those 
facilities are under the Federal jurisdiction.
    Who knows what will come up to be utilized in this new 
legislation? They will not be controlled by Border Patrol or 
Federal resources, they will be controlled by local authorities 
or private entities.
    And so, my friends, I think that if we are going to talk 
about massive detaining of this wave of undocumented 
individuals, then I think minimally you need criteria, you need 
instructions, you need guidelines for the safety and care of 
those who will be detained.
    At this time, Mr. Chairman, I ask respectfully that this 
amendment be withdrawn and I hope that as we move toward the 
floor and this bill includes a provision of earned access or 
documentation of our undocumented individuals in this country 
and we look to comprehensive immigration form, a provision such 
as providing guidance to the new holders of immigrants 
undocumented, if that is the case, if that happens, that we be 
respectful of the fact they must be safely secured, children 
safely secured, women must be safely secured, the elderly and 
the frail, because that would not be the approach that 
Americans would want to take. With that I yield back and ask--
--
    Chairman Sensenbrenner. Without objection the amendment is 
withdrawn. Are there further amendments?
    Ms. Sanchez. Mr. Chairman.
    Chairman Sensenbrenner. Does the gentlewoman from 
California have an amendment?
    Ms. Sanchez. No, but I would like to strike the last word 
on the underlying bill.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Sanchez. Thank you, Mr. Chairman.
    I came to this hearing with every intention to mark up your 
border enforcement and immigration reform bill, the Border 
Protection, Antiterrorism and Illegal Immigration Control Act 
of 2005, but to my surprise this bill really has nothing to do 
with border enforcement or immigration reform. On the contrary, 
this bill will jeopardize our national security by implementing 
the worst provisions of the CLEAR Act.
    Mr. Chairman, with all due respect, if your intention was 
to pass the CLEAR Act, why didn't you just call this the CLEAR 
Act? As we all know, efforts to pass the CLEAR Act last session 
were derailed because many national security experts, law 
enforcement agencies and associations, local governments, 
faith-based institutions and community groups opposed it. And 
why did they oppose the CLEAR Act? Because they recognized that 
making police enforce immigration laws would have a detrimental 
effect on community policing and public safety.
    Clearly this bill uses the pretext of national security to 
bootstrap unimmigrant and, quite frankly, unAmerican policies 
into this bill. It merely perpetuates our failed immigration 
policies. Twenty years of shortsighted enforcement on 
immigration legislation has created the largest illegal 
population in our Nation's history, and unfortunately H.R. 4437 
is just more of the same.
    Since 1996 the Government has consistently taken an 
enforcement-only approach that includes many of the same flawed 
policies that H.R. 4437 would expand. These include using ever 
more sophisticated military-style surveillance equipment, 
physical barriers, including walls, fences and highways 
doubling as border barriers, and dramatically increasing the 
number of Border Patrol agents.
    Enforcement alone does not work. As we know, throwing more 
money at our broken immigration system and putting more agents 
at the border hasn't led to fewer undocumented immigrants, it 
has increased that number. Enforcement only doesn't work.
    From 1993 to 2004, the number of Border Patrol agents 
tripled from about 4,000 to 11,000 and the amount of spending 
has gone up five times, from 740 million to 3.8 billion, yet 
the number of undocumented immigrants doubled from 4.5 million 
to 9.3 million. Enforcement only doesn't work.
    More of the same old poise will not solve our immigration 
problems, it will however continue to erode the basic civil 
liberties and human rights not only of migrants but of legal 
immigrants and citizens as well.
    Let me highlight three of the most troubling provisions of 
this bill that are from the CLEAR Act. First, this bill makes 
unlawful presence a crime as well as an aggravated felony under 
section 203. Since State and local police can assist in the 
enforcement of Federal criminal laws, this bill could lead to 
an open season on anyone in this country who appears to be 
foreign, and that is left up to the discretion of the enforcing 
officer.
    Immigrants will no longer know if it is safe to call local 
police or not, because law enforcement officials could possibly 
question their status. As we know, local police departments do 
not want to become immigration enforcers because it silences 
immigrant crime victims and witnesses to helping them solve 
crimes. According to the California Police Chief's Association, 
the result of this provision will set back years of community 
policing efforts and attempts by law enforcement agencies to 
build goodwill in the community.
    This provision will make communities less safe, not more 
safe. And it gets worse. There is a provision in this bill that 
would permit State and local agents to use homeland security 
grants for immigration enforcement activities pursuant to an 
agreement with the Federal Government. This provision basically 
robs Peter to pay Paul. First responders receiving homeland 
security funds need every dime to prevent and respond to 
emergencies. This provision raids their covers to encourage 
State and local police to be immigration agents.
    Congress has already cut first responder funding. The State 
Homeland Security Grant Program has been cut in half, from 1.1 
billion to $550 million, and the Urban Area Security Initiative 
has been cut by another $120 million. For the sake of national 
security, our State and local governments cannot afford further 
dilution of these critical funds. This bill is far from being 
pro-security and pro-enforcement. The three CLEAR Act 
provisions I mentioned in this bill actually undermine 
enforcement and security.
    Basically we need to ask ourselves on this Committee this 
question: What kind of America do we want? Do we want an 
America where we have mass deportations? Do we want an America 
where police officers can randomly ask people who look 
``other'' to produce identification to prove their legal 
status? Do we want an America where people can be detained for 
life when their home country is unwilling to take them back? Do 
we want an America where Americans will have to carry national 
identification cards to travel, work, or just walk down the 
street? I sincerely hope not. But all the things I just 
mentioned are possible if we pass H.R. 4437, and for this 
reason I urge my colleagues to oppose this bill.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Ms. Sanchez. I would ask for unanimous consent for an 
additional minute.
    Chairman Sensenbrenner. Without objection.
    Ms. Sanchez. It is in the Book of Matthew that Jesus tells 
us, ``For whatsoever you do to the lowest of my brethren, you 
do unto me.'' I think this is a very sad day and that America 
can do better.
    With my concluding comments, I would just ask for unanimous 
consent to include letters from the Congressional Hispanic 
Caucus, the American Jewish Committee, the Human Rights Watch, 
National Council of LaRaza, who all oppose this bill, and of 
150 State and local law enforcement agencies, associations and 
governments who are opposed to the CLEAR Act, into the record. 
I yield back my time.
    [The material referred to follows:]
    
    
    Mr. Gohmert. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Gohmert, is recognized for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman. I appreciate the 
question, what kind of America do we want? Let me tell you, as 
a former judge, some of the things that we dealt with and some 
of the things that law enforcement dealt with. For one thing, 
when you have a man that comes to your court who has been 
arrested time and time and time again for driving while 
intoxicated and he has never been deported because they don't 
have adequate agents to do that kind of thing, one in the 
entire area of East Texas, and it is made clear by the Federal 
Government that local law enforcement are not allowed to take 
immigration actions, it gets pretty frustrating to local law 
enforcement; and the people would like a safe America, so the 
people that were hit by this gentleman who is illegally in the 
United States, not only harmed them, he gave my Hispanic 
friends, people cast a giant shadow over all of a particular 
group just because he happens to have a similar appearance, and 
it is grossly unfair. But people deserve a safe America.
    So when I sent the man to prison because he had harmed 
people while intoxicated for the umpteenth time, and then see 
him back in my court in just a matter of months, because as 
soon as he got to prison finally the Federal authorities 
decided to take action and they deported him, but they didn't 
wait long enough at the border to watch him come back across 
and come to our county so that he could hit other citizens 
while intoxicated.
    I said if they are going to pull him out of prison, let us 
send him to treatment so maybe there be less chance. He made it 
through a few months of treatment before INS picked him up and 
deported him, so heaven knows who all he may have harmed after 
that.
    This kind of law will allow local law enforcement to assist 
the Federal law enforcement in making America safer. Hispanics, 
people who have come over from Mexico, they deserve not to have 
illegal people who do wrong acts cast a pall over them. We have 
hardworking friends and Americans who deserve to be protected, 
of every race, creed, color, national origin, gender, and that 
is what this bill is trying to do. When it comes to what kind 
of America we want, it ought to be safer for every race, creed, 
national origin or gender, and I am proud that we are actually 
trying to take action to do that. I yield back.
    Chairman Sensenbrenner. Are there further amendments?
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. Do you have an amendment?
    Ms. Lofgren. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I think we are winding down, it appears to me, 
but there are a couple of other items in the underlying bill 
that I really feel need to be discussed and brought to the 
attention of Members and the public generally. And I am going 
to mention two of them: section 407, the expansion of the 
expedited removal provision; as well as section 805 which is, I 
think, a completely unworkable proposal relative to reviews of 
BIA decisions.
    First, on the expedited removal provision, I think it is 
important to note that expedited removal is an abbreviated 
process that basically is no process it all. It is an officer 
who is playing an immigration function who essentially acts as 
prosecutor, judge, jury, the entire decision maker. There is no 
review, there is no due process whatsoever.
    Now, an argument can be made that that is an appropriate 
process at the border and we could have a discussion about 
that. If you are in the middle of the desert and a group of 
people is walking across, certain assumptions can be made about 
that when people do not present themselves at a port of entry 
without documentation. But what the bill proposes to do is to 
treat that border process, to expand it 100 miles from the 
border.
    Now, I am from California, northern California, which is 
more than 100 miles from the southern land border, but in the 
Homeland Security Committee we had a substantial discussion 
about what in California is 100 miles from the border, and it 
includes Disneyland. Disneyland is not the border; it is not 
the border, and the issue. And my colleague Mr. Lungren and I 
engaged in a dialogue about what our concern was about the due 
process of illegal aliens. I think it is important to note we 
are concerned about the due process of rights of American 
citizens, American citizens and legal residents of the United 
States; because there is no process to protect the rights of 
Americans who could be perceived by an individual as not 
lawfully present.
    And so I guarantee you if this becomes law, and I don't 
think it will, ultimately we will deport Americans and there 
will be no recourse for those Americans. We will deport legal 
residents and it will have a deleterious impact on our country 
and it certainly does not mete what we have come to know as 
fortunate people who are Americans the due process that is 
required in the American Constitution.
    Now to section 805. This is truly an extraordinary 
provision. This section sets up a new system in which a single 
court of appeals judge must prereview the case to certify 
whether it should be reviewed in Federal court under the 
standard of, quote, ``substantial showing that the petition for 
review is likely to be granted,'' unquote. If the prereview 
judge fails to issue a certificate of reviewability, the 
petition for review is deemed denied. No explanation is 
required. The decision is completely unreviewable.
    Now, we know and we have had discussions about the Ninth 
Circuit and how overwhelmed they are. I have met with the 
justices of the Ninth Circuit and they have explained to me and 
other members of the California delegation that part of the 
problem they are dealing with is the massive inflow of 
immigration appeals. And the reason why those appeals are 
coming is that the Administration basically destroyed the 
Bureau of Immigration Appeals. And we have immigration law 
judges that are issuing one-sentence decisions. They are not 
being appropriately reviewed. We have got BIA judges doing one-
sentence decisions, and the process has broken down; but those 
cases don't go away, they simply show up in the court of 
appeals which has jurisdiction.
    I think that to think, even with our limited habeas 
provisions in here, that we will avoid burdening the Federal 
courts by section 805 is a big mistake. There is a habeas, and 
I think it is unfortunate that all habeas jurisdiction would be 
lodged in the District of Columbia, no matter where the case 
arises, but I can guarantee you that that will be where these 
cases flow to. And if we have got a sludge of cases in the 
Ninth Circuit, we are going to see that same thing occur in the 
District of Columbia.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired. Are there further amendments?
    Mr. Berman. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California seek recognition?
    Mr. Berman. I have an amendment at the desk, Mr. Chairman.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 4437 offered by Mr. Berman:
    At the end, insert the following and make technical and 
conforming changes, including changing title and section 
numbers, as necessary.
    Title III----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the gentleman from California will be 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Berman. Yes, Mr. Chairman. This is the Kolbe-Flake--two 
titles of the Kolbe-Flake legislation, H.R. 2330 dealing with 
Titles III and VII. Title III is the essential worker visa 
program which provides for the admission of essential workers 
based on market-based numerical limitations with provisions for 
employer obligations with respect to these workers, protection 
of workers, pot righting for their adjustment to lawful 
permanent resident status, and creating a willing worker/
willing employer electronic job registry.
    Title VII creates the H-5B nonimmigrants visa program 
dealing with U.S.--workers in the U.S. not now in status, to 
give them a process to adjust status, both come forward, 
provide their true identities, be fingerprinted, have 
background checks, and then allow them temporary visas to work 
and condition their status on their continuing to work; and if 
at such time as they complete their obligations with respect to 
payment of fines and their obligations to work, makes them 
eligible for adjustment to permanent resident status.
    This amendment fills the glaring hole and the fundamental 
deficiency in the bill before us by truly making what is an 
unworkable program into a meaningful and comprehensive solution 
with some very tough border enforcement provisions, a mandatory 
verification provision, and a provision by which the 11 million 
people in this country whose presence keeps the bill, without 
this provision, from having any positive impacts. It provides 
that which President Bush has spoken about, which a number of 
key Senators have, and which I think almost every objective 
observer of the crisis we are in thinks is essential to its 
conclusion. I ask for the Committee's adoption of Mr. Flake's 
negotiated language.
    Mr. Flake. Mr. Chairman.
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes in opposition to the amendment.
    The Chair knew that the gentleman from California couldn't 
resist his impulses to offer this amendment. The Chair tried to 
advise the gentleman from California in our earlier colloquy 
that it was a bad idea to offer this amendment because it is 
premature and things need to be worked out.
    This amendment should be rejected if only for one reason. 
Section 306 grants amnesty to 11 million illegal aliens. The 
amendment turns a border security enforcement and employer 
verification bill into a mass amnesty bill. Amnesty did not 
work in the Simpson-Mazzoli Act in 1986, it won't work again in 
this bill. Amnesty only encourages more people to come to the 
United States illegally, whether it is illegal entry under the 
fence, or a legal entry, and then overstaying a visa.
    I think that the gentleman offering this amendment, if he 
persists in it, is going to set back the efforts to get a 
reasonable guest worker program that is politically acceptable 
to the Congress and the American public a huge amount. I would 
urge a strong ``no'' vote against this amendment and yield back 
the balance of my time.
    Mr. Berman. Would the gentleman yield?
    Chairman Sensenbrenner. Of course.
    Mr. Berman. The word ``amnesty'' is an interesting one. It 
is used to oppose things that people don't like. I am curious, 
since the gentleman is on record as envisioning a context in 
which at some point in the future we will need a guest worker 
program, to the extent that such a program allowed people who 
entered this country illegally to participate in the program. 
Is that program that the gentleman envisions--and understanding 
he hasn't worked out the specifics yet--is that an amnesty 
program?
    Chairman Sensenbrenner. The devil is in the details.
    Mr. Berman. Yes.
    Chairman Sensenbrenner. You have got the details in this 
one, and it is an amnesty program. It is called adjustment of 
status. But adjustment of status for people who are illegally 
in the United States is amnesty. And if it quacks like amnesty, 
it adjusts like amnesty, it is amnesty.
    Mr. Berman. If the gentleman would continue to yield. I 
would like to tell him a conversation I had with the gentleman 
from Colorado, Mr. Tancredo, a couple of years ago.
    Chairman Sensenbrenner. If the gentleman will yield back, 
that should have been enlightening. So tell us.
    Mr. Berman. The gentleman from Colorado liked to use the 
term ``amnesty.'' So I did it in the context of a piece of 
legislation Mr. Cannon knows well, worked with me on, called Ag 
Jobs. And he was saying that is amnesty. John Cornyn of Texas 
has proposed an amnesty, everybody is proposing amnesty, 
according to Mr. Tancredo.
    I said in the context of Ag Jobs, Tom, if you had a choice, 
you had entered the country illegally, and you were told you 
had a choice of two different kinds of punishment, 30 days in 
county jail or working for 360 days in agriculture, harvesting 
crops, which one would you take? Because Mr. Tancredo is an 
honest and direct person, he said I would take 30 days in 
county jail over 360 days picking crops in agriculture.
    I suggest to you anything which is conditioned on future 
work, that requires fines to pay off because of the original 
illegal entry and creates a series of conditions, including 
ensuring that you had committed no other illegal acts while you 
were in this country, that you are checked through on any watch 
list that exists, that you come out, that you become 
fingerprinted, you give your true identity, I would suggest 
that is not within my concept of amnesty; that is a conditional 
adjustment based on not simply what has happened in the past, 
but things you have to do in the future in order to make the 
conditions of that adjustment of status.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Issa. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Issa.
    Mr. Issa. Thank you, Mr. Chairman, and I too rise in strong 
opposition to this amendment. And I would like to clarify two 
things. First of all, President Bush has made it clear that he 
does not want an amnesty, and this falls well within the 
definition of amnesty by President Bush.
    Having said that, I would like to respond to my colleague 
from California by saying that we can define very clearly for 
you what is amnesty, and it is fairly straightforward. Whether 
or not we have a guest worker program that uses existing 
workers in this country who are here out of status illegally, 
or we bring them in, if we are going to bring them in and tell 
them you can get a green card and become a citizen, then it is 
not a guest worker program. The definition of a guest worker 
program must be one in which you are a temporary guest and you 
go home. If you take a guest worker program and convert it to 
an immigration program, then by definition it is no longer just 
a guest worker program.
    So I would say to the gentleman, no matter where the source 
of those workers, if you want to call something a guest worker 
program, you genuinely have to recognize that it cannot mix and 
match immigration.
    Just one more thing.
    Mr. Berman. Will the gentleman yield?
    Mr. Issa. One more thing before I yield. I am not somebody 
who believes in pure democracy. I have often said people of my 
district send me here to use my best judgment. However, in my 
district I did a poll of 8,788 people, so it was a very 
comprehensive survey, and I did this with the Government money 
just to find out some important points of where people stood.
    And on the question of supporting requiring employers to 
use the employment eligibility verification system, I had 81.5 
percent of those 8,000 or so respondents who said yes, they 
have to do it. So that, as one of the underlying underpinnings 
of this bill, is clearly something that crosses party lines, 
crosses economic lines. I probably had illegals who said they 
should be doing it, it is so many people.
    Additionally, the question of amnesty is opposed by 65 
percent. And when asked would you support an adjustment, yes, I 
had 42 percent, but only for--on the question asked as though 
it was an adjustment to work here, not to immigrate.
    I would ask unanimous consent that the survey be allowed to 
be placed in the record and I would yield to the gentleman 
without objection.
    Chairman Sensenbrenner. Without objection.
    [The material referred to follows:]
    
    
    Mr. Berman. I thank the gentleman for yielding. So in the 
gentleman's very interesting and flexible definition of 
amnesty, if you have entered this country illegally and worked 
in a legal status, and then you go home and apply for the guest 
worker program and come into this country, that is okay.
    Mr. Issa. Reclaiming my time. To answer the gentleman's 
question, the amendment that we are faced with that I am 
speaking on is not just a guest worker program but, in fact, an 
adjustment of status to permanent residents--hold on--allowing 
for citizenship. That is what is clearly the definition of 
amnesty. That is clearly what the voters in my district and, 
for that matter, the voters in your district oppose. We can 
have a civilized discussion on a guest worker program. I look 
forward to that, I will support that. However, today what we 
are doing is taking a broken system both at the border and 
interior and trying to fix it. This is not only not germane but 
it is clearly an amnesty, and I would yield to the gentleman.
    Mr. Berman. There is nothing in any dictionary definition 
that describes amnesty as if it leads to permanent citizenship; 
it is okay. Amnesty is about forgiving people for their illegal 
acts.
    Mr. Issa. Reclaiming my time. The gentleman from California 
did a good job of explaining Mr. Tancredo's position that 
everything is amnesty. This Committee, I believe on a 
bipartisan basis, is willing to set aside one strict definition 
and find a way to fix a broken--or absence of a sufficient 
guest worker program. However, clearly the amendment offered 
here today has fatal flaws at a Presidential level, at a House 
level, at a Senate level, and certainly with the Committee 
Chairman, and that is the reason I am urging people to strongly 
oppose this. And I yield back.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. Let me be sure I understand the opposition to 
the Flake bill, which is what we are discussing here. This is 
the Republican Flake approach to this problem. It apparently is 
amnesty. You apparently believe the Flake approach represents 
amnesty and it should be rejected, and you just articulated 
that this is a position that has been redacted by this House. I 
am not sure the gentleman from Arizona would agree with that, 
but let us assume for a moment that we accept that premise.
    I imagine next we will able to consider the McCain 
approach. Would that be amnesty? Would that be something that 
has universally been rejected? Well, I have heard President 
Bush say positive things about the McCain approach. Perhaps 
there is an Issa approach, perhaps a Sensenbrenner approach. We 
are having a markup now of immigration legislation which has 
been described as solving the problems of immigration laws. 
Let's go at it. If you believe that the Flake Republican 
approach, which we are considering now, is not the correct 
approach----
    Mr. Issa. Would the gentleman yield?
    Mr. Weiner. Certainly.
    Mr. Issa. I apologize, but we are not really having an 
immigration markup.
    Mr. Weiner. I reclaim my time. You have finally struck upon 
a chord of truth. We are not having an immigration markup 
today. I am glad somebody has conceded that on that side of the 
aisle. We are trying. It has been explained that we were, so we 
are going to try now. And now you have the Republican Flake 
amendment in front of you, his bill that we are going to have a 
chance now--Mr. Flake was out of the room, so let me--I don't 
know if you heard it. This may comes as news to you, but it has 
been described, Flake, as dead on arrival; doesn't represent 
the view of the House, the view of the President, the view of 
the country, because it is amnesty.
    Here it is. We believe that the Flake amendment should be 
debated and we are doing it now. We have also--we also perhaps 
have heard that the President doesn't support the Flake 
approach. I have read the President, who doesn't have a bill, 
by the way, prefers the McCain Republican approach to this 
problem. We have heard Mr. Issa say he opposes the Tancredo 
Republican approach to this problem. Maybe it is about time we 
decide what the Republican governing position is on this 
matter. We have a moment here to do it. We have the Flake 
amendment before us. If you think it should be amended and 
voted down, I happen to agree with you. If you think it should 
be amended and voted down, bring it on ``Chicky,'' let's do it.
    If you think the McCain, which I think we will offer next, 
should be amended and voted down, that is fine. But you are 
running out of the various approaches that the Republicans call 
their immigration policy.
    Mr. Issa. Would the gentleman yield? Since you have invoked 
my name ``Chicky,'' I just wanted to quickly respond. When I 
said----
    Chairman Sensenbrenner. The Members will conduct their 
debate in a parliamentarily decorous manner.
    Mr. Issa. Yes, Mr. Chairman.
    To respond to your statement, it is to amend the 
Immigration Nationality Act to strengthen enforcement of 
immigration laws and enhance border security, and that is the 
reason I am saying it is not about immigration. Hopefully I am 
consistent.
    Mr. Weiner. Let me reclaim my time. You can walk backwards 
out of a gaffe as long as you want, but I want to talk about 
what we are doing here. What we are doing here is trying to 
sort out what the Republican policy is on immigration. Now, 
obviously, there is a widespread schizophrenia problem going on 
even between you and the gentleman to your right. You have 
described Mr. Flake's bill as essentially not representing the 
House, not representing the President. Well, let's find that 
out. The only way is by marking it up and voting on it.
    And so right there--we are in a strange position. We are 
waiting to see what the governing party wants to do on this 
very important issue that now six people have referred to as we 
desperately need to revisit at some point. Let's do it.
    Mr. Berman. Will the gentleman yield?
    Mr. Weiner. Certainly I would.
    Mr. Berman. Isn't this the party that keeps telling the 
minority party, what is your proposal, where is your 
alternative? They are the majority party. They know that the 
bill they are passing can never become law because of the 
devastating impacts on the economy. At least half of them have 
already acknowledged here we need a guest worker program. But 
do they have one in this bill? No.
    Mr. Weiner. If I could just reclaim my time. But at least 
maybe we can sort out at least in that little corner of the 
lower row of the Republican Party here, exactly what the view 
is; and a good way is let's have a vote. Let's resoundingly 
reject, as Mr. Issa said, the Flake approach.
    Mr. Issa. Will the gentleman further yield?
    Mr. Weiner. I have now yielded twice and gotten nothing 
fruitful from it.
    Mr. Issa. I was going to give you something fruitful. I 
look forward to working with Mr. Tancredo and Mr. Flake and 
myself to find compromises.
    Chairman Sensenbrenner. The time of the gentleman from New 
York has expired.
    Mr. Weiner. Request unanimous consent for 1 additional 
minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Weiner. I am pleased to hear, and I am sure the Nation 
breathes a sigh of relief to know you are willing to work out 
the Republican agenda on immigration. We are here at the House 
Judiciary Committee dealing with legislation on immigration. 
What time better than now? The gentleman whose amendment is 
being considered right now is just right now right next to you. 
You can even introduce yourself to him.
    You have characterized his legislation in the most derisive 
way: it is amnesty. It is not the policy of this country and 
never will be. The President doesn't support it.
    Here it is. We are having a markup, we have a chance. We 
are going to, by hook or crook, determine what the Republican 
view is on immigration reform. You say you want to do it, let's 
go ahead and do it.
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Flake. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Arizona has come 
to life. For what purpose--the gentleman is recognized for 5 
minutes.
    Mr. Flake. I appreciate the Chairman giving me this chance 
to talk about my amendment, my bill. Let me just say that when 
I was elected 5 years ago, the first thing I said while I was 
campaigning and said consistently since I have been here, if we 
want to secure the border, we have to have a legal channel for 
workers to come and then return home. I believed that then, I 
believe that now.
    I am not in favor of amnesty, I have never proposed 
amnesty. I agree with Mr. Berman's definition. An amnesty is an 
unconditional pardon for a breach of law. I am not offering 
that. Under our legislation, if you are here illegally and wish 
to stay on a temporary basis, you pay a fine of $1,000 and you 
go to the back of the line. And amnesty is what we did in 1986 
when we said, if you can prove you have been here for 5 years, 
you have got a shortcut to a green card.
    That is not what we are proposing here. I would submit 
those who are so quick to call our bill amnesty and to say that 
anything less than enforcing the current law is amnesty might 
want to consider that the current law means that we ought to 
round everybody up, ship them home, and subject them to either 
a 3- or 10-year bar. Unless you are willing to offer that 
legislation and the funding to do it, you are offering amnesty. 
That is the bottom line.
    So when these terms are thrown around like that, think of 
what you are saying. The current law calls for removal, 
deportation, and a bar from reentry. For those who say, well, 
let's just pretend that they are not here, let's keep them in 
the shadows, that is more of an amnesty than anything in my 
view. To pretend they are not here and let's say I will count 
to 100 and if you go back to your home country and apply from 
there, then we are not going to give you amnesty, that is 
simply wrong and we shouldn't be engaging in that charade.
    I am committed to our approach. I think that if we want a 
secure border, you have to have a legal channel for workers to 
come and go and to recognize the best thing we can do for 
national security, for the economy, and for humanitarian 
reasons is to bring those who are in the shadows out and not 
pretend that they don't exist.
    But now I also believe, as Ecclesiastes said in the Bible, 
there's a time and a place under everything under heaven. Now 
is not the time, unfortunately, for our bill to be debated in 
the Judiciary Committee. I would love to see it pass, and I 
believe that we will. We are committed to having a guest worker 
plan. I don't often say this, but thank goodness for the 
Senate. I don't think I have ever said that.
    Mr. Weiner. Will the gentleman yield?
    Mr. Chabot. Take those words down.
    Mr. Flake. I would encourage the gentleman from 
California----
    Chairman Sensenbrenner. Was that a serious demand that the 
gentleman's words be taken down?
    Mr. Chabot. I will withdraw.
    Mr. Flake. I would urge the gentleman from California if he 
cares about moving the ball ahead, I would love to do it 
comprehensively. I am not in favor of doing this now. I would 
rather see the whole thing done, but that is not where it is 
done. I am smart enough to count votes. And I would like to see 
the ball move ahead and finally to address the immigration 
problem that we have.
    With that, I would encourage the Member to withdraw his 
amendment.
    Mr. Berman. May I respond?
    Chairman Sensenbrenner. The gentleman from Arizona will 
have to yield.
    Mr. Flake. I will yield 30 seconds to the gentleman from 
California.
    Mr. Berman. Thirty? Sixty. I am not going to withdraw it 
and here's why. Because the speaker has said, a number of 
people here have said, we have to have this. I started out the 
comments in this entire discussion by talking about stupid. I 
would be embarrassed to say I know this bill is missing 
something, but we are not going to go through the effort to try 
and resolve and fill in what is missing in the hopes that the 
Senate would do the right thing.
    If I thought bringing this to a vote now would hurt what 
your ultimate goal is, I wouldn't bring it to a vote. It won't. 
It will just show the vacuous nature of what the majority in 
the House is trying to do. People who know this is a wrong 
approach shouldn't be voting for this bill. People who want the 
tough border enforcement and the verification and the 
adjustment and guest worker features as part of a comprehensive 
approach, like the President has said, like Senator Cornyn has 
said, like Senator McCain has said, Senator Kyl has said, they 
should not be voting for this----
    Chairman Sensenbrenner. The time of the gentleman from 
Arizona has expired.
    Mr. Delahunt. Mr. Chairman. Mr. Delahunt from 
Massachusetts.
    Chairman Sensenbrenner. Oh, yes. The gentleman is 
recognized for 5 minutes.
    Mr. Delahunt. You will be happy to know, Mr. Chairman, that 
I am going to yield my time to the gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. I thank the gentleman from Massachusetts and I 
thank the gentleman from Arizona for making that fervent appeal 
to his colleague from California. Unfortunately, the one he 
made the appeal to was the wrong gentleman from California.
    You did a very good job of rebutting what Mr. Issa had to 
say. You gave an articulate explanation about the importance of 
the issue that you believe in. I have got news for you, Mr. 
Flake; you don't have the votes there by any stretch. You 
probably don't have a lot of votes here, but at least we want 
to have a debate about this issue. But if you believe for a 
moment, for a moment, that this issue is going to somehow 
become more appealing to the leadership of this Committee or 
the leadership of the House as it gets closer to the election, 
or as months go by, you are wrong. This is it. This is our 
moment that we have in this Committee to deal with these 
important matters, and it is also a moment that you have to 
persuade your colleagues to do it.
    This notion that somehow things will get better if we do 
the political thing, the partisan thing now, or the easy thing 
or the thing that sells the best on TV now, and we will do the 
difficult complex things later on, it is myth.
    The President's bill--have you seen the President's bill? 
There is no President's bill. He has been talking about it for 
some time. He recently gave a round of speeches to perhaps try 
to divert from other subjects. He has no bill. I think you 
deserve credit for stepping up and saying I have some ideas, 
ideas that maybe I don't like, but let's do it and let's do it 
now.
    The way that your bill is being dismissed out of hand as 
not even worthy of consideration because it has amnesty all 
over it, I think that deserves to be debated as well. You had a 
completely different explanation of your view of amnesty than 
Mr. Issa's view of amnesty.
    If not now, when? I think it is important to know that this 
is in your control. The Republicans control the House, they 
control the Senate, they control the White House, they control 
the judiciary. This is the moment. Do you think it is going to 
get better in years to come? This is a moment of national 
attention. The President deserves credit for bringing that 
attention. This is a moment that this Committee has said, 
before we break, let's do something about immigration reform. 
Now you have a chance to persuade people to vote for your 
amendment, let's get to it. Let's talk about the things that we 
need to do to deal with this economy, to deal with this ongoing 
complex problem.
    You are going to look back, I fear, I say to the gentleman 
from Arizona, look back and say, boy, that was it, that was the 
Judiciary Committee of the House of Representatives considering 
the tough issues of immigration that plague the people of 
Arizona, that plague this economy, and, frankly, weigh on us as 
a moral matter in this country. And you are going to realize 
that day in early December, that was your last crack at it?
    Well, I think we have another choice. The other choice is 
to take your amendment, consider it, figure out ways we can 
reach consensus. I daresay there are very strong views held by 
your side, there are others over here as well, and let's have 
something good come out of this.
    If you don't like Flake, I say to Mr. Issa, go ahead, bring 
something else up. If you want to amend Flake, if you want to 
take out the part about amnesty, let's have a debate. But this 
is the burden of leadership. You guys run the House of 
Representatives, you run the Congress, your President has stood 
up and said do something about the vexing issues of immigration 
in this country. Well, this is the moment. The Judiciary 
Committee in whose jurisdiction this piece of legislation that 
has been ruled previously in this debate to be germane, let's 
go ahead and do it. And we have the foremost spokesman in the 
House, Mr. Flake's amendment before us. You don't want this 
withdrawn, Mr. Flake; you want this passed. You don't want your 
bill withdrawn, you want us to vote yes on it. You are on TV, 
writing articles, debating every single day. You want a ``yes'' 
vote.
    I want Mr. Flake to stand up and say I want a ``yes'' vote 
on Mr. Flake. I can't even get Mr. Flake to say he wants a yes. 
Mr. Issa said no, Mr. Sensenbrenner says he wants a ``no'' vote 
on Flake. You don't want Flake withdrawn, you want the 
Republican bill on the immigration voted yes, don't you? Isn't 
that why you are here? Isn't that why your constituents sent 
you here, to get a ``yes'' vote on Flake bills and amendments?
    This is your moment. You have a Flake bill, a Flake 
amendment right now in front of us at this moment. Now you want 
to withdraw Flake. You don't. You want ``yes'' on Flake. And I 
don't understand; if we can't get Flake to ask for a ``yes'' on 
Flake, who can we ask?
    So we have already heard Mr. Issa say ``no'' on Flake. We 
have heard Sensenbrenner say ``no'' on Flake. We have heard 
Berman say, ``You are going to have a vote on Flake.'' I hope 
at least Flake votes ``yes'' on Flake, because you may be the 
only one left here that will. And I yield back.
    Mr. Gohmert. Will the gentleman yield? Just for clarity, 
when you use the words ``Flake bill,'' are you using ``Flake'' 
as an adjective or a proper noun?
    Chairman Sensenbrenner. And with that, the time of the 
gentleman has now expired. The question is on the Berman 
amendment. Those in favor will say aye.
    Opposed to the Berman amendment will say no.
    The noes appear to have to have it.
    Mr. Berman. Mr. Chairman, on that we would like a rollcall 
vote.
    Chairman Sensenbrenner. rollcall will be ordered. Those in 
favor of the Berman amendment--and that is not the Flake 
amendment, but the Berman amendment--those in favor will 
signify by saying aye, those opposed, no; and the clerk will 
call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no.
    Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren.
    Mr. Lungren. No on Berman, yes on Flake.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa.
    Mr. Issa. I am with Flake. No on Berman.
    The Clerk. Mr. Issa, no.
    Mr. Flake.
    Mr. Flake. Present.
    The Clerk. Mr. Flake, present.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    [No response.]
    The Clerk. Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    [No response.]
    The Clerk. Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt, aye.
    Mr. Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Ms. Wasserman Schultz.
    [No response.]
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    Further Members who wish to cast or change their votes?
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 13 ayes, 22 nays and one 
present.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments.
    Does the gentleman from Maryland have an amendment?
    Mr. Van Hollen. I do not, but I move to strike the last 
word.
    Chairman Sensenbrenner. Gentleman is recognized for 5 
minutes.
    Mr. Van Hollen. I thank you, Mr. Chairman. As I take it we 
are wrapping up, I just want to say a few words having attended 
this entire markup.
    First, I would like to say I think all of us agree we need 
to address the border security problems. I think you can find 
bipartisan support for that issue. We have a porous border; we 
need to do more about it, and I think there are actually many 
provisions in this bill that address those issues.
    There are also--as my colleagues have pointed out; I am not 
going to go in detail--many provisions in this bill that I 
think take us very much in the wrong direction. And, frankly, 
having just received this bill about 48 hours ago, I don't 
think there is--there are very few Members of this Committee 
who have had a chance to read this entire thing. And I think it 
is inappropriate to be moving forward so rapidly on a bill that 
we have had no opportunity to review.
    Contrast that to Mr. Flake's bill, which has been before 
this body for a long time.
    I think all of us had an opportunity to review Mr. Flake's 
proposal and other proposals, and the glaring hole in this 
whole debate in this Committee is the fact that we are not 
dealing with this in a comprehensive manner.
    Mr. Flake mentioned the fact that sometimes he wished, you 
know, God bless the Senate from time to time. And 
unfortunately, from my perspective, that is not only true on 
this issue but on many other issues. But it is very true on 
this issue.
    Because you know, Mr. Flake--and I have great respect for 
you and your approach to issue--you know that this body over 
here is just taking up this particular piece of it because 
there is not a consensus on your side of the aisle to address 
this other very important piece.
    And you have also stated and the President has stated, if 
we don't deal comprehensively with this issue, we are not going 
to be able to address the issue of immigration problems 
generally.
    This train is leaving the station in the House. And I think 
it is a sad day when the House and everybody on this Committee, 
the great House Judiciary Committee, decides to abdicate its 
responsibility on a different issue and punt it over to the 
Senate and hope one day we are going to go to conference with 
the Senate that does its job, and we will have only dealt with 
half of the problem over here.
    I think the American people should be ashamed of the fact 
that we have refused to address this issue over here in the way 
all us know it should be addressed.
    And finally, to the extent people are proposing this is 
some kind of issue that deals with homeland security, yes, of 
course, there is a homeland security component to the border. 
But the 9/11 Commission just issued its final report. They 
issued a series of Ds and Fs with respect to this Congress' 
follow-through and their recommendations.
    None of those Ds and Fs related to any provision in this 
bill that we are dealing with today. They dealt with a whole 
range of other issues that are much more urgent on the national 
security agenda. And, again, not one of the Ds and Fs related 
to something that is being addressed in this bill.
    To present this to the American people as if this addresses 
our national security and homeland security issues, when the 
Commission, on a bipartisan basis, that was set up to look at 
this issue, has not even put this on their report card as 
something that should be addressed, I think is a scandal and 
misleads the American public.
    This is a very important issue. It should be dealt with as 
you, Mr. Flake, and others have tried to deal with it in a 
thoughtful manner. This was our opportunity today to address it 
in a thoughtful manner, and it is unfortunate that we are not 
doing so. And for that reason I am going to be voting ``no'' on 
final passage.
    Chairman Sensenbrenner. The Chair will remind Members that 
they can only be recognized once on a single question. The 
question is on the underlying base bill, and Members who have 
been recognized on that question heretofore must ask unanimous 
consent to speak a second time.
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Ms. Jackson Lee. It is offered and withdrawn.
    The Clerk. Mr. Chairman, I have two amendments.
    Ms. Jackson Lee. It is amendment No. 189.
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. Clerk will report the amendment.
    The Clerk. Amendment to H.R. 4377, offered by Ms. Jackson-
Lee of Texas. In section 401(c) add at the end of the following 
new paragraph: (3), Unaccompanied alien child--The mandatory 
detention requirements in subsection----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentlewoman will be recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the distinguished gentleman very 
much.
    The previous discussion, I felt fully comfortable in 
embracing Mr. Berman/Mr. Flake's amendment because frankly it, 
in essence, put at the very pinnacle of this discussion the 
reality of what we have to confront.
    And I guess my question to Mr. Flake, as I discussed my 
amendment, is, no matter how we move through this process, and 
whether we move to the Senate, we will have to confront the 
issue of the Republicans redefining ``amnesty.'' And to Mr. 
Issa's poll, if you malign, stigmatize and demonize a structure 
that will allow the regularity or making more regular the 
immigration system, you are going to get polling of 100 
percent, a poll to any form of regulation.
    And so I would ask Mr. Flake, what is his intent to even 
convince the Senate? Because he well knows my good friend and 
esteemed Senator in Texas and his Senator in Arizona intend to 
put forward a guest worker program that sends 11 million people 
back to their respective countries. Very unrealistic.
    And so this debate should have occurred not only today, but 
it should have occurred in regular order in the Subcommittee on 
Immigration, and it did not occur.
    Also, it did not address, if you will, the pulling of 
migrant workers to the United States because of their negative 
economic posture in the country where they come from. It has no 
provisions to prevent the 11 million migrant workers who are in 
the shadows of this immigration system to come out of the 
shadow.
    What is Mr. Flake's position on arguing that amnesty has 
been demonized? In fact, ``amnesty'' now has been equated to 
``terror.'' You will never get anything passed in the Senate 
because unless you break the shackles of the definition of what 
``amnesty'' means--and I would ask Mr. Flake whether he intends 
to do that.
    I have had legislation, as many others have had, H.R. 2092, 
and I intend respectively to offer those amendments on the 
floor that realistically look at earned access to legalization, 
which should be a real partner to the guest worker program. 
Because what it addresses is the question of putting criteria 
on undocumented individuals, no criminal background, community 
service, to get them in line. That speaks to security. That is 
what the 9/11 Commission was speaking about, that we are not 
secure; we don't know who is in this country.
    The amendment that is before us speaks to, I think 
unfortunately, an indictment in this bill. For the first time 
in history, we will have mandatory detainment for children. My 
amendment attempted to correct that.
    I hope my colleagues will look at this amendment when we go 
to the floor. Because I asked the question before, what is the 
criteria for all of the alternative detainment centers that we 
expect to use on this bill? Will we be using barns? Will we be 
using people's homes? Will there be any legitimate criteria to 
protect the most vulnerable? And because we are detaining 
children mandatorily under this bill, it seems to me we have 
great concern.
    And so, Mr. Flake, I wish you had taken the opportunity to 
defend this concept of earned access to legalization. In your 
instance, it is the guest worker program. And I wish you had 
defended, if you will, the reality of your provisions, because 
you tell me whether or not you expect to deport 11 million.
    And might I say that we have utilized the basic premise of 
the debate on immigrants coming from the southern border. There 
are South Asian immigrants. There are immigrants from the 
Mideast. There are immigrants from Ireland, from Poland. Poland 
is outraged that they have been one of our strongest allies in 
the war on terror and we won't open up the doors on the visa 
waiver program.
    I will be happy to yield in just a moment, Mr. Flake.
    Mr. Flake. Thank you.
    Ms. Jackson Lee. The real question of this debate today is 
one we should have premised and started in the Subcommittee of 
jurisdiction.
    Secondarily, I don't know how we leave this room speaking 
only of border security and labeling any form of regularizing 
the nondocumented individuals, not putting them in front of the 
legal line individuals, but recognizing their presence here, 
their ownership of property, and we demonize it by either 
suggesting ``amnesty'' equals to ``terror'' or amnesty is 
unacceptable.
    Then, Mr. Flake, your bill will not pass in the Senate, 
either. I yield to you for a moment.
    Mr. Flake. Thank you for yielding the last 15 seconds, I 
think.
    Ms. Jackson Lee. Just about. And I reclaim the 10.
    Mr. Flake. I mentioned that we need a comprehensive 
approach. But part of the problem with the approach that was 
just offered by Mr. Berman is that it only offers two sections 
of our bill. There are other sections of our bill that need to 
be offered, debated and passed. And I would argue to pass the 
whole thing.
    The problem is, part of the reason there isn't an amnesty 
to do what we are doing is because we say, if you are going 
through the legal, orderly process in your home country----
    Ms. Jackson Lee. I ask for an additional minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Flake. If you are going through the legal, orderly 
process in your home country, you won't be placed in line in 
back of these who are here illegally now. So another section of 
our bill deals with backlog reduction, for example.
    That is why you need a comprehensive approach, not just the 
two sections that were offered.
    There was a clever way to do it, and I am glad the debate 
was had. And I am grateful to Mr. Berman for speaking up.
    Mr. Berman. Would you like me to offer the bill?
    Ms. Jackson Lee. Let me just say to you, I think you would 
have had a friendly response if you had offered to amend Mr. 
Berman's----
    Chairman Sensenbrenner. The time of the gentlewoman has 
once again expired.
    Ms. Jackson Lee. My amendment----
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Ms. Jackson Lee. I ask to withdraw my amendment, Mr. 
Chairman.
    Chairman Sensenbrenner. Without objection, the amendment is 
withdrawn.
    Are there further amendments?
    Mr. King. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Iowa seek recognition?
    Mr. King. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 4437 offered by Mr. King of 
Iowa. In section 247--excuse me, 274A(b)(7)(F)(ii), of the 
Immigration and Nationality Act, as added by section 701(a) of 
the bill, insert [page 133, line 15] ``within the time period 
specified in subparagraphs (B) and (C),'' after 
``investigation.''
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith, reserves a point of order.
    The gentleman from Iowa is recognized for 5 minutes.
    Mr. King. Thank you Mr. Chairman.
    My amendment addresses, I will say, a hole that is created 
by the bill. The bill requires the employers to use the 
employment verification system.
    Chairman Sensenbrenner. Will the gentleman from Iowa yield?
    Mr. King. I would, Mr. Chairman.
    Chairman Sensenbrenner. My understanding is that this 
requires suspicious--or investigation within 10 days of 
suspicious use of Social Security numbers in the basic pilot 
program. I think it is an improvement to the bill. And I am 
prepared to accept it.
    Mr. King. I would thank the Chairman and conclude my 
opening remarks and yield back the balance of my time.
    Chairman Sensenbrenner. Gentleman's time is yielded back. 
The question is on adoption of the amendment offered by the 
gentleman from Iowa, Mr. King.
    All those in favor, signify by saying aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments? If there are no further 
amendments, a reporting quorum is present. The question occurs 
on the motion to report the bill, H.R. 4437, favorably as 
amended.
    All those in favor will say aye.
    Opposed, no.
    The ayes appear to have it.
    Two Members are requesting a rollcall. Those in favor of 
reporting the bill as amended favorably will, as your name is, 
called answer aye. Those opposed, no. And the clerk will call 
the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye.
    Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Mr. Inglis.
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Mr. Issa.
    [No response.]
    The Clerk. Mr. Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye.
    Mr. Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no.
    Ms. Waters.
    [No response.]
    The Clerk. Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no.
    Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no.
    Mr. Weiner.
    Mr. Weiner. Yes on Flake. No on this.
    The Clerk. Mr. Weiner, no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Van Hollen.
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz, no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Further Members in the Chamber wish to cast or change their 
votes?
    Gentleman from California, Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes?
    If not, the clerk will report.
    Gentlelady from California, Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Mr. Chairman, there are 23 ayes and 15 noes.
    Chairman Sensenbrenner. And the motion to report the bill 
favorably as amended is agreed to. Without objection, the bill 
will be reported favorably to the House in the form of a single 
amendment in the nature of a substitute incorporating the 
amendments adopted here today.
    Without objection, the staff is directed to make any 
technical and conforming changes, and all Members will be given 
2 days, as provided by the rules, in which to submit additional 
dissenting supplemental or minority views.
    This concludes the business of the meeting as noticed. And 
without objection, the Committee stands adjourned.
    [Whereupon, at 1:15 p.m., the Committee was adjourned.]
                            Additional Views

    If circumstances would have allowed me to have been 
recognized today in the Committee, I would have made the point 
that I agree that our immigration process is sorely in need of 
overhaul, from the top to the bottom.
    I have spent the last 60 days on an immigration tour 
throughout the Fourth District examining the impact of our 
current immigration policy on health care, education, 
construction, manufacturing, farms and government agencies. All 
total, we visited more than a dozen stops and hosted six town 
meetings. The results are clear that we need comprehensive and 
effective immigration laws. At every stop, we saw the effects 
of laws that are not enforced or not enforceable; are not 
working or are inadequately supported by personnel or 
infrastructure.
    This leads to my first concern with this bill. It is not a 
comprehensive solution. I can appreciate the need for tougher 
penalties and better deterrents for those that violate 
immigration laws, but penalties must be supported by additional 
enforcement mechanisms to ensure the penalties can be 
implemented.
    This proposal also strengthens one critically weak area of 
the current system by requiring employers to verify the 
eligibility status of prospective employees, and thankfully, 
technology makes this easier than ever.
    It is my hope that the Senate will add a provision for a 
guest worker program--one that does not include amnesty, but 
offers a way that those who have entered our country illegally 
can pay restitution, leave the country to adjust status, even 
carry out community service or pay some other penalty in order 
to earn the privilege of being restored as legal residents.
    Other areas of concern I had with the bill are the 
provisions for mandatory minimum sentences. Mandatory minimums 
do a disservice to the judicial decision-making process, which 
is already guided by sentencing guidelines. I would hope that 
these mandatory minimum sentences will be addressed during 
conference with the Senate, which is less prone to rely upon 
mandatory-minimum sentences.
    I eagerly look forward to working with the Committee 
leadership on future issues.

                                   Bob Inglis.
                            Dissenting Views

    We believe that a strong border security policy is an 
absolute and immediate necessity for this Nation. However, 
without bipartisan comprehensive immigration reform to bring 
eleven million people out of the shadows with a path to legal 
immigration status and full integration in our society, the 
gaping hole in our border security will continue to grow 
unabated.
    The Nation has an immediate crisis along the Southern 
border as evidenced by the recent declarations of emergency by 
the governors of those states. The Homeland Security Committee 
passed a border security bill to concerning these issues. On 
the way to our Committee, however, the legislation was made far 
worse and less effective by anti-immigrant provisions which 
have been hastily added to this legislation and have no bearing 
on security on the border.\1\ This pursuit of short-term 
political gain will ultimately prove counter-productive, since 
the legislation will distract the Department of Homeland 
Security and divert it limited resources from the core mission 
of protecting this Nation against terrorism. Indeed, the 
bipartisan 9/11 Commission has not identified any of the 
excessive provisions that the Majority have included in this 
bill as necessary for homeland security. We recognize that 
Americans deserve real border security rather than the false 
sense of security offered by this bill. This is particularly 
true at a time when the present Administration is bringing but 
a handful of employer sanction cases per year. For all of the 
reasons set forth below in further detail, we respectfully 
dissent from H.R. 4437.
---------------------------------------------------------------------------
    \1\ At the outset, we must object that Majority leadership provided 
Committee members with a copy of the 169-page bill only two days prior 
to the Committee hearing which necessarily limited both Republicans' 
and Democrats' ability to thoroughly review and debate the bill on its 
merits at the Committee hearing. Given the importance of the matters at 
hand, we believe that the Committee should have been given an 
opportunity for a full consideration and the opportunity to craft 
comprehensive legislation.
---------------------------------------------------------------------------

                                OVERVIEW

    With this legislation, the Majority increases mandatory 
detention, expedited removal and criminal penalties for civil 
immigration violations for all aliens, including innocent 
undocumented children, who will now automatically be subject to 
being locked up behind bars without the right to see an 
immigration judge. Of the bill's most pernicious provisions, an 
alien's ``unlawful presence'' would become a federal felony 
punishable by over one year in jail time and an ``aggravated 
felony'' for immigration purposes which would permanently bar a 
person from securing lawful immigration status in the United 
States.
    Ironically, or perhaps intentionally, the 11 million 
undocumented people in the United States would be excluded from 
a guest-worker program which President Bush and other Members 
of the Majority reportedly embrace. If history is any lesson, 
these get-tough policies have not proven effective in deterring 
violations under the Immigration and Nationality Act (INA). 
Over the last two decades, Congress has enacted 17 pieces of 
legislation to crack down on immigration violators. Instead, 
the undocumented population has swelled to a record level. 
There is a clear consensus within the mainstream American 
public that the INA needs to be fundamentally overhauled to 
recognize the reality of the American economy and American 
employer's real labor shortages and needs for foreign-born 
workers. Often compared to the Internal Revenue Service tax 
code given its arcane complexity, the INA is torturous for 
United States businesses, citizens and American families to 
navigate and secure status for employees and loved ones.
    We also oppose the bill because it eviscerates due process 
protections fundamental to our legal system and the 
Constitution through the expanded use of expedited removal, 
limitations on judicial review and refugee protection. These 
provisions cannot be predicated on the belief that low-level 
bureaucrats are somehow infallible in their decision-making and 
thereby should not be subject to any further review of their 
decisions. This belief is fundamentally mistaken given the 
dismal track record of the Department of Homeland Security and 
the Executive Office for Immigration Review in administering 
justice in individual cases.
    The lack of administrative and judicial review is 
particularly worrisome since even United States citizens and 
lawful permanent residents inevitably will become wrongfully 
ensnared by expedited removal and wrongfully deported to 
foreign countries by virtue of their ethnicity, appearance or 
not carrying and presenting their proper identification to 
border patrol agents. In virtually every other area of law, 
review of an administrative agency's decision is guaranteed. 
Instead of correcting the lack of justice in the underlying 
administrative system, the Majority instead seeks to immunize 
the system from any transparency, accountability and scrutiny.
    Additionally, we believe that certain provisions in the 
bill are an insulting rebuke to the Supreme Court of the United 
States and the American public which trusts the Court to 
interpret the United States Constitution. One provision 
discussed below effectively reverses Supreme Court precedent 
prohibiting the Department's indefinite detention of aliens to 
now sanction the Department's indefinite detention of aliens. 
Another provision discussed below effectively reverses Supreme 
Court precedent protective of the due process rights of aliens 
when they accept pleas in state courts of law and are 
unapprised that their pleas will result in their removal by 
immigration authorities. Under this bill, corrective state 
court orders will be given no effect for immigration purposes 
despite Article IV to the United States Constitution which 
requires the Federal Government to give full, faith and credit 
to state court judgments.
    In our opinion, the bill is so extreme that it is beyond 
repair. Instead of reforming our immigration system to improve 
border security and effectively and realistically address 
undocumented immigration, this legislation destroys the system 
and creates untenable expectations for the Department of 
Homeland Security to successfully enforce every provision of 
this misguided bill. The Department of Homeland Security does 
not have and will never be appropriated the detention capacity 
necessary to detain and deport all aliens subject to mandatory 
detention and expedited removal, thereby undermining their 
ability or willingness to arrest as many aliens as possible. 
The Department of Justice further will not be appropriated the 
resources necessary to prosecute and incarcerate all 11 million 
undocumented aliens, their American families and employers. As 
written, the bill betrays real border security as well as the 
moral values, economic priorities and the promise of America.

     I. JURISDICTIONAL CONSIDERATIONS PRECLUDED OUR REVIEW OF FOUR 
 PROBLEMATICAL SECTIONS OF THIS BILL THAT ELEVATE POLITICAL MESSAGING 
                          OVER SERIOUS REFORM.

    The provisions of Titles I, III, IV, and V of H.R. 4437 
were originally Titles I, II, III, and IV, respectively, of the 
House Homeland Security Committee-reported version of H.R. 
4312, the ``Border Security and Terrorism Prevention Act of 
2005.'' Unfortunately, Chairman Sensenbrenner announced at the 
beginning of the Judiciary Committee's markup of H.R. 4437 that 
most of these provisions were outside of the scope of the 
Judiciary Committee and that, accordingly, amendments to most 
of these provisions in the Judiciary Committee would be ruled 
nongermane. This precluded the Minority from offering 
amendments to improve these important provisions of the bill. 
We must still, however, express our concern about several 
aspects of these provisions.
    First, we are disappointed by the timidity of the Homeland 
Security Committee-reported provisions in addressing our 
problems on the United States border with Mexico and Canada, as 
is embodied by these provisions. The four titles contain 
several important provisions that we support and several that 
we oppose. However, on the whole, they repeat a well-worn 
pattern that has emerged over the last five years, wherein the 
President declines to ask Congress for the resources necessary 
to secure our border, the Majority, declines to authorize 
specific amounts of funding for those resources, and the 
Majority fails to appropriate adequate resources for those 
purposes.
    We note that the Minority on the House Committee on 
Homeland Security offered a substitute for H.R. 4312 that would 
have more effectively addressed our Nation's border security 
needs. We believe that amendment was worthy of support, and we 
are disappointed that the Committee rejected it on a party-line 
vote. We wish to associate ourselves with the dissenting views 
presented by our colleagues on the House Committee on Homeland 
Security in H. Rept. 109-317, part 1, which expressed their 
view that their Substitute to H.R. 4312 would have ``better 
secure[d] the border by taking steps in three main areas 
insufficiently addressed in the base bill: (1) stronger 
planning and coordination; (2) more accountability for 
struggling efforts to screen travelers and speed up commerce 
and travel; and (3) genuine commitments to provide the 
resources, training, and incentives needed by the people 
working everyday to secure the border.''
    We associate ourselves, as well, with the dissenting views 
expressed by our colleagues on the Homeland Security Committee 
that:

        ``The Democratic substitute provides for stronger 
        border security planning and coordination by requiring 
        the development and implementation of a national border 
        security strategy that includes specific information on 
        the personnel, infrastructure, technology and other 
        resources needed to secure the border, including 
        surveillance equipment necessary to monitor the entire 
        northern and southern borders. The substitute also 
        strengthens planning and coordination by establishing 
        an Office of Tribal Security to help the Department 
        coordinate with tribes along the border who are 
        overwhelmed by illegal border crossings. It also 
        creates northern and southern border coordinators who 
        can be held accountable for the security of the border 
        in their respective geographic areas.

        ``The Democratic substitute strengthens accountability 
        for programs designed to screen travelers and speed 
        commerce and travel by requiring regular reports on 
        Smart Border accords with Mexico; expanding expedited 
        land border traveler programs by putting their 
        enrollment systems in more locations and reducing fees, 
        creating a North American travel card usable by certain 
        low-risk American, Canadian, and Mexican travelers; 
        creating a pilot of a system for prescreening of U.S.-
        bound passengers before they get on a plane; developing 
        a new tool to replace the Department's antiquated 
        method for checking names against terrorist databases; 
        requiring on-site verification of the security measures 
        taken by entities participating in the Customs-Trade 
        Partnership Against Terrorism (C-TPAT) program and the 
        Free and Secure Trade (FAST) program; and requiring 
        annual reporting on the implementation of the ``One 
        Face at the Border'' initiative.

        ``Finally, the Democratic substitute makes genuine 
        commitments to provide the tools and authority needed 
        to better secure the border . . .''

    Second, we are disappointed that several provisions that 
had been adopted by the Committee on Homeland Security in H.R. 
4312, as it was reported to the House of Representatives, were 
left out of H.R. 4437. These include:

         LSection 302 of H.R. 4312, as reported by the 
        Homeland Security Committee, which would have 
        authorized funding to carry out section 5204 of the 
        Intelligence Reform and Terrorism Prevention Act of 
        2004, directing the Secretary of Homeland Security to 
        increase detention bed space by 8,000 beds per year 
        during that time.

         LAn amendment by Ranking Democrat Bennie 
        Thompson, agreed to during the House Committee on 
        Homeland Security markup of H.R. 4312, that would have 
        established within the Department of Homeland Security 
        an Office of Tribal Security.

The failure of the Majority to include these provisions that 
were in H.R. 4312 in the version of H.R. 4437 is emblematic of 
a longstanding pattern that the Majority is more interested in 
protecting the priorities of the current Administration than in 
protecting our borders.
    Third, we are concerned that several provisions contained 
in the four titles that were originally reported by the House 
Committee on Homeland Security are actually counterproductive 
and could be more harmful than helpful in helping to combat 
illegal immigration. Among these are:
A. Use of Homeland Security Grants for Immigration Enforcement.\2\
---------------------------------------------------------------------------
    \2\ Section 305 of H.R. 4437 would permit States to use State 
Homeland Security Committee grants, Urban Area Security Initiative 
grants, or Law Enforcement Terrorism Prevention Program grant funds for 
preventing or responding to the unlawful entry of an alien or providing 
support to another entity relating to preventing such an entity.
---------------------------------------------------------------------------
    We are deeply concerned about section 305 for two reasons. 
First, it would permit states to divert their homeland security 
grant funds to pay for border security functions that would 
normally be carried out by federal agencies. While we share the 
concern that an increasing amount of local government funds in 
border states are having to be spent to deal with the 
consequences of illegal immigration, we do not support forcing 
states and local governments to forgo funding they need to meet 
their traditional law enforcement and first responder missions.
    We note that the Administration already has cut the State 
Homeland Security Grant program, one of the grants affected by 
section 305, in half, from $1.1 billion in FY 2005 to $550 
million in FY 2006. Spreading thin the remaining dollars in 
this program will only weaken state and local government first 
responder and homeland security preparedness. We note that the 
International Association of Fire Fighters opposed section 305 
in a letter stating: ``If money is needed for immigration 
enforcement, then Congress should provide funding to the 
appropriate programs. Diverting funds from fire departments is 
not the solution.''
    We also oppose the Majority's unrelenting push to force 
states to enforce civil immigration law. Many State and local 
law enforcement agencies around the country have expressed 
grave concerns about undertaking a role in enforcing civil 
immigration law, contending that it would undermine the 
relationships they need to have with their communities and make 
their communities less safe. We agree with their views on this 
question.
B. Mandatory Detention.\3\
---------------------------------------------------------------------------
    \3\ Section 401 of H.R. 4437 would require the mandatory detention 
of an alien ``who is attempting to enter the United States illegally 
and who is apprehended at a United States port of entry or along the 
international land and maritime border of the United States'' until he 
or she is removed from the United States or until a final decision has 
been rendered granting the alien admission to the United States. During 
an interim period between the date of enactment of the bill and one 
year after the date of enactment, the provision would permit such 
aliens to be released, but only if they pay a minimum $5,000 bond and 
meet certain other conditions.
---------------------------------------------------------------------------
    Section 401 is an overreaction to a flawed Administration 
policy of ``catch and release'' of aliens who it should have 
detained. While detention of aliens who are a danger to the 
community, a national security risk, or are in danger of 
absconding is a vital part of any strategy to secure our 
borders, expanding mandatory detention indiscriminately on such 
a broad scale as would occur under section 401 would be more 
harmful than helpful. Rather than enact section 401 into law, 
the Administration should seek and Congress should provide 
additional detention resources, better guidance on detention, 
and a more rational policy on who is detained and who is 
released.
    Section 401, adopts a one-size-fits-all attitude that fails 
to prioritize scare detention resources. Coming on top of the 
failure of the Majority to provide adequate detention 
resources, it is a prescription for continued disaster. We do 
not have the physical capacity--even with greatly increased 
numbers of beds and facilities--to hold all illegal entrants 
for months or years. The logical solution to this problem is to 
focus on expediting the judicial process for captured aliens 
and detaining those who are a threat to our communities or at 
risk of flight.\4\
---------------------------------------------------------------------------
    \4\ We note that Representative Lofgren, Representative Jackson 
Lee, and Representative Meek offered numerous amendments during the 
House Committee on Homeland Security markup of H.R. 4312 that would 
have enacted a more rational policy than that contained in section 401. 
Among them were amendments that would have sped the judicial process by 
requiring the Department to make a determination of whether an 
individual should be detained within seven days of arrest; put into 
place better controls to ensure that an alien released will appear at 
future proceedings; mandated a legal orientation program for aliens in 
removal proceedings to increase the efficiency and effectiveness of 
removal proceedings; and exempted vulnerable populations, such as the 
elderly, unaccompanied alien children, pregnant women, and the 
critically ill from the mandates of section 401. Unfortunately, these 
amendments were either defeated or ruled nongermane.
---------------------------------------------------------------------------
C. Denial of Entry to Citizens of Countries that Deny Admission of U.S. 
        Deportees.\5\
---------------------------------------------------------------------------
    \5\ Section 404 of H.R. 4437 would repeal current law, which 
requires the Secretary of State to deny visas to nationals of countries 
that deny or delay accepting their citizens, nationals, or residents 
whom the United States wishes to deport. It would insert in its place a 
provision that would authorize the Secretary of Homeland Security, 
after consultation with the Secretary of State, to deny the admission 
of nationals of countries that deny or delay accepting their citizens, 
nationals, or residents whom the United States wishes to deport.
---------------------------------------------------------------------------
    We have serious concerns about the impact this section 
could have on citizens from certain countries who will be 
completely unresponsive to the pressure on their citizens that 
this new requirement might exert. To address this problem, 
Representative Lofgren introduced an amendment during the House 
Committee on Homeland Security markup requiring the Secretary 
of Homeland Security to deny admission not to average citizens, 
but rather to government officials traveling to the United 
States on official government business. This amendment would 
put the pressure on the government officials causing the 
problem, rather than on innocent foreign nationals merely 
wanting to come to the U.S. for travel, trade and family 
visits. This amendment was found non-germane in the Homeland 
Security Committee, and the opening announcement by Chairman 
Sensenbrenner about his view of germaneness implied that any 
amendment to deal with this unfortunate section would have been 
ruled nongermane in the Judiciary Committee, as well.
D. Training Program on Credible Fear.\6\
---------------------------------------------------------------------------
    \6\ Section 406 of H.R. 4437 would require that, not later than six 
months after the date of enactment, the Secretary of Homeland Security 
review and evaluate the training provided Border Patrol agents and port 
of entry inspectors in the exercise of their duties with respect to 
referring aliens to asylum officers for credible fear determinations. 
The section would, further, require the Secretary to ``take necessary 
and appropriate measures'' to ensure consistency in their referrals of 
aliens to asylum officers for determinations of credible fear.
---------------------------------------------------------------------------
    We are concerned about the impact of this provision on 
those seeking asylum. Current law requires persons to be 
referred for a credible fear determination if they indicate a 
fear of persecution. We would hope that the Administration will 
not interpret this provision as a signal that there should be 
fewer referrals of aliens for credible fear determinations.
E. Expansion of Expedited Removal.\7\
---------------------------------------------------------------------------
    \7\ Section 501 of H.R. 4437 would make the use of expedited 
removal mandatory against aliens suspected of having entered the United 
States without inspection who are neither Mexican nor Canadian, who are 
apprehended within 100 miles of the U.S. international border, and have 
been in the United States for 14 days or fewer.
---------------------------------------------------------------------------
    We are deeply concerned by the implications of Section 501. 
Current law already gives the Administration flexibility to 
expand or contract expedited removal as it sees fit in order to 
fit circumstances that it confronts at any given time. 
Expanding expedited removal statutorily in this manner would 
permanently tie the Administration's hands and force it to use 
the procedure, even when it might deem it unwise, and when it 
believes that the use of expedited removal would pose more of a 
burden than it is worth.
    Moreover, once amended by this section, expedited removal 
would give the Secretary the power to remove from the country, 
without hearing, any immigrant thought to be illegally in the 
United States caught within 100 miles of the border and within 
2 weeks of the person crossing into the United States. Imposing 
expedited removal on all aliens apprehended at or between all 
land borders and within 100 miles of that border will apply 
expedited removal to thousands of people who are currently 
subject to regular immigration proceedings. Suddenly, thousands 
of people will go from having rights to appeal removal orders, 
rights of release from detention by immigration judges, and 
other due process rights in regular immigration proceedings to 
no appeal option and no opportunity for counsel. The only 
proceeding these individuals will receive is an on-the-spot 
decision by a Border Patrol Agent as to whether they should be 
removed. Furthermore, these individuals will face 5-year bars 
on reentering, all based on a very quick decision by a Border 
Patrol agent.
    We also feel strongly that the rule of law must be 
paramount in our practices, and expedited removal should be a 
method of last resort. It is far more preferable to hold a 
hearing to ascertain the status and intentions of a detained 
alien than to remove the person without trial for two reasons. 
First, security may be threatened by expedited removal as it 
may lead to the removal of an alien who, if detained for a 
longer period or subjected to a judicial hearing, may be 
discovered to be a terrorist. Second, removing individuals 
without at least some sort of hearing undermines the perception 
that the United States is a Nation that believes in a fair 
judicial process governed by the rule of law. At a time when we 
are engaged in a War on Terror where our respect for fairness 
and the law is one of the most important principles we can 
export abroad, we should not take steps to eliminate these 
principles in our immigration enforcement process--even for 
those caught here illegally.

 II. H.R. 4437 WILL FUTHER EXPAND THE MANDATORY DEPORTATION PROVISIONS 
  IN CURRENT LAW TO INCLUDE CATEGORIES OF MINOR OFFENSES FOR WHICH NO 
              EXTENUATING CIRCUMSTANCES MAY BE CONSIDERED.

    Instead of enacting long-needed reforms of the Nation's 
deportation laws to give immigrants facing deportation a chance 
to show why their deportation would be unfair and contrary to 
the Nation's interests, H.R. 4437 increases the unfairness and 
harshness of the current immigration laws relating to non-
citizens accused of past violations of the law. We are aware of 
the serious immigration consequences of a conviction for an 
aggravated felony are: mandatory detention and deportation, as 
well as permanent bars to immigration relief and future legal 
entry. Taken together, we are deeply concerned that Sections 
203 and 201 of H.R. 4437 make criminals of the 11 million 
individuals living in this country without legal status, 
including 1.6 million children.\8\ The overwhelming majority of 
these people are not here to commit crimes, but rather to work 
and provide for their families. Turning them all into felons 
with the stroke of a pen is counterproductive.\9\
---------------------------------------------------------------------------
    \8\ Section 203 of H.R. 4437 modifies section 275 of the 
Immigration and Nationality Act to make ``unlawful presence'' in the 
United States a misdemeanor. Section 201 makes a conviction for this 
new crime an ``aggravated felony'' for immigration purposes.
    \9\ Making criminals out of undocumented people makes them 
vulnerable to state and local police arrest. The inclusion of section 
203 in this legislation is a sly attempt by the bill's authors to enact 
the CLEAR Act (H.R. 3137) without calling it such. We reject the bills' 
premise that all undocumented immigrants are criminals that should be 
rounded up by state and local police agents. State and local law 
enforcement have many more serious concerns on their hands, including 
protecting our communities from violent criminals and keeping our 
streets safe. If this provision passes as part of H.R. 4437, 
undocumented immigrants and their families will no longer know whether 
contacting the local police will be a help or a hurt. In addition, 
police officers attempting to implement this provision will no doubt 
use dubious strategies to determine who to question and detain. Racial 
profiling is an inevitable outcome, as police will focus greater 
scrutiny on people who look or sound ``foreign.'' Such a policy would 
most certainly lead to civil rights violations and expensive lawsuits 
when police question and detain legal residents and citizens who happen 
to be of Latin American, Asian, or other descent.
---------------------------------------------------------------------------
    Significantly, Sections 201 and 203 would also criminalize 
millions of legal non-immigrants and immigrants, including 
lawful permanent residents and non-immigrants who accrue 
technical violations of immigration regulations. Section 203 
makes being ``present in the United States in violation of the 
immigration laws or the regulations prescribed thereunder'' a 
federal crime punishable by a prison sentence of one year and 
one day. But such violations would include lawful permanent 
residents who fail to report a change of address to the 
Department of Homeland Security (DHS) within ten days, as well 
as university students on an F-1 visa who drop below a full 
course load or H-1B workers who lose their jobs and take too 
long to find another job. Section 201 would make such 
``crimes'' an ``aggravated felony,'' subject to mandatory 
detention and virtually no relief from deportation.''
    We consider it ironic that many of the lead authors of H.R. 
4437 recently announced their support for a temporary worker 
program.\10\ Their legislation here, however, will make 
undocumented immigrants who are convicted of the new crime of 
unlawful presence ineligible for any type of temporary program, 
legalization, or future immigration status. The question we 
raised during Committee consideration of H.R. 4437 remains--
does the Majority wish to find a solution for the 11 million 
undocumented immigrants living among us? If so, can they agree 
on what it is? Is it making them all criminals and organizing 
mass deportations, or is it a registration and vetting process 
along the lines proposed in H.R. 2330 by Representatives Jim 
Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL) ? We 
support earned legalization, not criminalization and mass 
deportation.
---------------------------------------------------------------------------
    \10\ President Bush has also indicated that he envisions such a 
program to facilitate legal immigration based on employment to reduce 
undocumented migration. He would extend this program to the current 7 
million undocumented workers making up 5% of the Nation's labor force, 
in addition to future workers.
---------------------------------------------------------------------------

   III. OVERBROAD SMUGGLING PROVISIONS IN SECTION 202 COULD SEVERELY 
                         PENALIZE INNOCENT ACTS

    This section goes well beyond the traditional scope of 
alien smuggling and has the great potential to implicate many 
Americans under the broadened definition of smuggling.\11\ We 
believe that the ``assists, encourages, directs, or induces'' 
standard is so broad that the Government could prosecute almost 
any American who has regular contact with undocumented 
immigrants.
---------------------------------------------------------------------------
    \11\ Section 202 amends Section 274 of the INA in a manner that 
greatly expands the scope of criminal smuggling, harboring, and 
transporting aliens to ``whoever assists, encourages, directs, or 
induces a person to come to or enter the U.S., or to attempt to come to 
or enter the U.S., knowing or in reckless disregard of the fact that 
such person is an alien who lacks authority to come to or enter the 
United States.'' H.R. 4437 also goes beyond the current language of 
Section 274 to include ``whoever 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'' H.R. 4437 further 
expands the transporting provisions as well to include the clause 
``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.''
---------------------------------------------------------------------------
    With 11 million undocumented immigrants currently residing 
and working in the this country, millions of American have 
direct and casual contact with undocumented immigrants. For 
example, a church group that provides food aid, shelter, or 
other assistance to members of its community could be penalized 
for ``assisting or encouraging.'' The aid worker who finds an 
illegal entrant suffering from dehydration in the desert and 
drives that person to a hospital could be penalized for 
``transporting.'' Even driving an undocumented worker to work 
could be interpreted to ``aid or further in any manner the 
person's illegal presence in the U.S.'' And any U.S. citizen 
living with an undocumented spouse could be considered to be 
``assisting or encouraging'' a spouse's presence.
    Certainly alien smuggling and trafficking for profit are 
activities that need to be sanctioned, and existing law already 
provides for harsh penalties. However, H.R. 4437 goes far 
beyond increasing penalties for these heinous activities and 
jeopardizes the well-being of millions of Americans--neighbors, 
family members, faith institutions, and others--who live and 
work with undocumented immigrants.

 IV. TITLE VI OF H.R. 4437 WOULD BAR A GRANT OF LAWFUL RESIDENT STATUS 
TO MILLIONS OF IMMIGRANTS CURRENTLY WORKING IN THE U.S., INCLUDING MANY 
IMMIGRANTS WITH U.S. CITIZEN SPOUSES OR CHILDREN OR FLEEING PERSECUTION 
                                ABROAD.

    The Federal Government has an obligation to protect the 
freedoms enshrined in the Constitution at the same time we 
protect the security of our borders. America's democratic 
principles of fairness are essential to our way of life. We 
must, therefore, oppose many provisions in Title VI because 
they undermine these principles. Instead of getting tough on 
dangerous individuals and terrorists as the disingenuous titles 
of the sections imply, provisions in Title VI targets those 
hardworking families who want to be part of American society 
and refugees who fled persecution for hope and opportunity in 
America.
    We believe that Section 601 has the potential to deny 
individuals who face death, torture or abuse in their home 
countries from obtaining relief under withholding of removal. 
This is inconsistent with America's obligations under 
international law and the plain meaning of the Immigration and 
Nationality Act.\12\
---------------------------------------------------------------------------
    \12\ Withholding of removal is a form of protection given to 
immigrants whose life or freedom would be threatened because of the 
alien's race, religion, nationality, membership in a social group, or 
political opinion. Similarly, immigrants who would face torture in 
their home countries can apply for withholding of removal protection 
through the Convention Against Torture. The applicant for withholding 
must show a clear probability of persecution or that it is more likely 
than not that her or she would be persecuted if removed to his home 
country. Unlike asylum, withholding of removal is ``mandatory,'' which 
means that a judge is required to grant relief to individuals who meet 
the statutory requirements.
---------------------------------------------------------------------------
    We are also alarmed by the sweeping nature of Section 602, 
disingenuously titled as ``Detention of Dangerous Aliens'' 
because it expands the Government's authority to jail people 
for an infinite period of time. Two recent Supreme Court 
decisions expressly found that the Government cannot 
indefinitely detain of individuals who have final removal 
orders, but cannot be returned to their home country, due to no 
fault of their own. The question raised in these cases, and by 
this section, is a simple one: is it lawful for an executive 
branch employee, essentially the warden in these cases, to give 
a person a life sentence merely because the Government is 
unable to remove the person? The answer was a resounding 
no.\13\
---------------------------------------------------------------------------
    \13\ In Zadvydas v. Davis, et al., 121 S. Ct. 2491 (June 28, 2001) 
the Court found, ``The post-removal-period detention statute, read in 
light of the Constitution's demands, implicitly limits an alien's 
detention to a period reasonably necessary to bring about that alien's 
removal from the United States, and does not permit indefinite 
detention.
---------------------------------------------------------------------------
    A statute permitting indefinite detention would raise 
serious constitutional questions. Freedom from imprisonment 
lies at the heart of the liberty protected by the Due Process 
Clause.'' This bill's attempt to exclude ``inadmissible'' 
aliens entirely from a review process contradicts Clark v. 
Martinez, which extended the protections outlined in Zadvydas 
to ``inadmissible aliens'' from Cuba whose deportation was not 
``foreseeable.'' The Court held, ``Even if the statutory 
purpose and constitutional concerns influencing the Zadvydas 
construction are not present for inadmissible aliens, that 
cannot justify giving the same statutory text a different 
meaning depending on the characteristics of the aliens 
involved.'' \14\ Even asylum seekers and individuals with no 
criminal convictions have been, and could be, subject to 
indefinite detention under this section.\15\ Similarly, we are 
concerned about the fact that the removal period can be 
``tolled'' for immigrants who are transferred to another 
Federal, state or local agency--his appears to be a stalling 
tactic to prevent individuals from having their detentions 
reviewed in the statutory allotted 90 days.
---------------------------------------------------------------------------
    \14\ Clark v. Martinez, 125 S.Ct. 716 (Jan 12, 2005), the Court 
held that the prohibition in Zadvydas against indefinite detention of 
removable aliens also applied to inadmissible aliens given canons of 
statutory construction requiring that the removal statute be construed 
consistently for both classes.
    \15\ For example, an individual who arrives from China, fails to 
attend a removal proceeding because he never got notice of the hearing 
and thus has a final order of removal, could be become a ``lifer'' and 
detained indefinitely if his home country is unwilling to issue travel 
documents.
---------------------------------------------------------------------------
    We also oppose Section 603 because it increases penalties 
and sets mandatory minimum sentence with respect to aliens who 
fail to depart when ordered removed or obstruct their removal, 
or who fail to comply with the terms of release while under 
supervision. The premise underlying this section is that tough 
mandatory minimum sentences will solve the problems associated 
with removal. We believe, however, that current law already 
contains sufficient penalties for individuals who fail to 
depart or comply with the terms of their release. Moreover, 
empirical evidence does not support this premise. The Judicial 
Conference of the United States and the U.S. Sentencing 
Commission have found that mandatory minimums distort the 
sentencing process and have the ``opposite of their intended 
effect.'' \16\ Mandatory minimums ``destroy honesty in 
sentencing by encouraging charge and fact plea bargains.''
---------------------------------------------------------------------------
    \16\ See U.S. Sentencing Commission, Special Report to Congress: 
Mandatory Minimum Penalties in the Federal Criminal Justice System 
(August 1991).
---------------------------------------------------------------------------
    Further, mandatory minimums result in unwarranted 
sentencing disparity. That is, ``mandatory minimums . . . treat 
dissimilar offenders in a similar manner, although those 
offenders can be quite different with respect to the 
seriousness of their conduct or their danger to society . . .'' 
and . . . ``require the sentencing court to impose the same 
sentence on offenders when sound policy and common sense call 
for reasonable differences in punishment.'' \17\ The Majority 
has failed to demonstrate any rationale purpose for mandatory 
sentences in this legislation--only an unwanted increase in 
detention time, space and money. Finally, we do not believe the 
punishment fits the crime when the Government is forced to 
detain someone for offenses without looking at the individual 
circumstances of the person's case.
---------------------------------------------------------------------------
    \17\ Id.
---------------------------------------------------------------------------
    Section 604 creates a new ground of inadmissibility for 
individuals who are in violation of fraud related offenses 
connected with Social Security cards and other identification 
documents. We are particularly disturbed by the fact that 
Section 604 strips the right to waivers to inadmissibility for 
certain individuals. This section will harshly penalize 
newcomers who are not criminals and come to the United States 
to contribute to the US work force. Because there are not legal 
channels for most of these necessary workers to enter the 
country or obtain work permits, many rely on false documents to 
contribute to our economy and feed their families.
    This section inappropriately removes the discretion of 
officers and judges to weigh favorable equities and individual 
circumstances when determining whether a bar to admission 
should be ``waived'' for humanitarian or related reasons. Under 
this section, individuals can be forever barred from this 
country for this conduct that occurred 20 years ago, regardless 
of their potential to be an outstanding member of society. 
Countless individuals would be denied admission without regard 
to family and employment ties, and other discretionary factors. 
Barring such waivers is an insult to judges whose exercise of 
discretion is fundamental to their role.
    We must also take issue Sections 605 and 606 due to the 
wide and retroactive net cast by these aggravated felony 
provisions. As we noted above, the aggravated felony provisions 
of this bill border on the ridiculous by including a wide net 
of minor offenses, including ones that are misdemeanors and not 
violent or aggravated. It is unreasonably harsh to attach a bar 
to adjustment for some individuals who fall under these 
provisions, when discretion in the review process can produce a 
more just and reasonable outcome.
    Similarly, we take issue with Section 608 because it 
creates new grounds of inadmissibility and deportability for 
people who may have not have engaged in any wrongdoing at 
all.\18\ We believe it may be unconstitutional to create a 
``guilt by association'' regime whereby individuals who have 
never actually engaged in gang related activities but who are 
merely associated with them can be found deportable or 
inadmissible.\19\ Further, we believe the designation scheme is 
likely unconstitutional because it provides no notice to the 
group or association being designated. Lastly, we believe the 
bars to asylum and TPS undermine our obligations to protect 
people who are victims of persecution or torture.
---------------------------------------------------------------------------
    \18\ Section 608 applies to individuals who are 1) members 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 2) is a member of a criminal street gang as designated by 
the Attorney General. The bill sets up a designation process whereby 
the Attorney General can without notice designate a group or 
association as a ``gang.'' This proposal is based on the ``Alien Gang 
Removal Act of 2005,'' H.R. 2933.
    \19\ We echo the remarks by Georgetown University Law Center 
Professor David Cole: ``It is already a deportable offense for a gang 
member, or indeed any other foreign national who is convicted of an 
aggravated felony, a very broad term that as this Committee no doubt 
knows, includes misdemeanors, misdemeanors, includes shoplifting crimes 
and the like. What this bill does is make people deportable who have 
never committed a crime in their life, who are not suspected of 
committing a crime, who are merely deemed by the Department of Homeland 
Security to be a member of a group which is deemed by the Attorney 
General to be a bad group. Bad groups have bad people in them. They 
also have good people in them. This bill makes no distinction between 
the two. It deports anyone who is found to be a member of any group 
which has been blacklisted by the Attorney General. That's guilt by 
association. If you took the McCarthy era laws that this Congress 
repealed in 1990, and you just substitute ''criminal street gang'' for 
''communist,'' that's what this bill would be. It essentially takes 
that approach where we punished people not for their own individual 
culpable conduct, but for their association with groups that we didn't 
like, and rendered them deportable. That's what this bill does, and it 
violates the first amendment right of association, and violates the 
fifth amendment right of an individual to be treated as an individual 
and not treated as culpable based on your associations.'' http://
judiciary.house.gov/media/pdfs/printers/109th/22187.pdf
---------------------------------------------------------------------------
    As a general matter, we are disturbed by attempts in this 
bill to slow down and limit the naturalization process.\20\ In 
combination, Sections 609 and 612 represent an unprecedented 
attack on lawful permanent residents who are applying for 
naturalization. Section 609 unreasonably extends the time DHS 
has to adjudicate naturalizations applications from 120 days to 
180 days and limits the ability of an individual seek relief 
from District Courts if the DHS fails to make a timely decision 
a naturalization application. The bill removes the ability of 
the District Court to adjudicate delayed applications and 
instead only allows the court the ability to review the cause 
for the delay and remand the case back to DHS where there is no 
guarantee of prompt processing. Given President Bush's repeated 
pledge to speed up DHS application process, it is unjustifiable 
to award DHS additional time to complete naturalization 
applications and then further penalize the individual whose 
application is not adjudicated in a timely manner by denying 
him the ability to seek relief in court.\21\
---------------------------------------------------------------------------
    \20\ In addition to the constitutional issues raised by retroactive 
application of the provisions of Section 6, we are also concerned that 
section 610 may be unconstitutional because it expands the ability for 
DHS (a non-neutral agency) to summarily deport a broad class of 
immigrants without judicial or administrative review. See also Section 
613, modifying the already problematic definition of conviction to 
include any reversal, expungement, or modification of a conviction 
record.
    \21\ See also, remarks from Robert Gibbs, ``This approach is 
particularly troubling given our experience here in Seattle, where we 
won a state-wide class action settlement with CIS agreeing that they 
had been making GMC determinations incorrectly for the past several 
years, causing at least 500 bad denials. Our experience demonstrates 
the need for judicial review.'' See, Lee v. Gonzalez.

609 limits scope of judicial review of denial to whether the DHS denial 
was supported by a ``facially legitimate and bona fide reasons'' as 
opposed to the current de novo review. BIEA 609(c) also precludes 
adjudication of a natz application if ICE commences removal 
proceedings, so even if you get to court on a denial, they can shut 
---------------------------------------------------------------------------
down your court case by filing an NTA.

609: Besides the improper denials, there is a huge problem with delayed 
adjudications. There are 900 citizenship cases in this district that 
are held up beyond normal processing times because the FBI is 
overwhelmed with background check requests. There are many thousands 
more nationally. There is nothing negative on the applicants, just an 
inability of FBI to complete the searches that they want to do. We have 
numerous of these cases, some waiting over three years after their 
interview, where they passed all the history and English tests. Many 
are Iraqi refugees from Gulf War I, who escaped Saddam Hussein's 
prisons and who cleared CIS background checks when they entered and 
then when they got permanent resident status. Some have been offered 
jobs by the US Army to go back to Iraq and interpret for our troops, 
but they cannot get hired because their citizenship application is 
stuck, and CIS can give no explanation of the problem.

Under the current law, 8 USC 1447(b), if the citizenship interview has 
happened, and 120 days have passed without a decision, the applicant 
can ask a federal court judge to decide your case, who can grant the 
application, or send it back to CIS for further action. [Prior to 1990, 
the statute provided that the courts would decide naturalization 
applications, after you applied to INS for a recommendation. In 1990, 
Congress decided to make it more administrative, and shifted to INS the 
power to decide the application as an initial matter, but left an 
option to go to court for a decision if INS did not do so in 120 days 
after interview].

BIEA 609 would effectively eliminate the right under 8 USC 1447(b) to 
get a decision in delayed citizenship cases. While it appears to just 
shift the wait time from 120 to 180 days, in reality the clock would 
never start, as BIEA 609 also allows the DHS to define by regulation an 
``interview'' or ``examination'' to be continuing. This is a tack they 
tried successfully in a court in Virginia with a pro se petitioner, but 
other courts have rejected this as vitiating the 120 day rule 
completely. As if this were not enough, even if the case gets to court, 
the only power the court s is to send it back to CIS.
    Section 612 similarly limits the naturalization process by 
making it more difficult to achieve a finding of good moral 
character.\22\ We believe that current standards, allowing the 
Government to determine good moral character based on conduct 
outside the five year time period provides sufficient 
flexibility and has more meaning because of the five year 
limitation. Under this section, such flexibility is subject to 
more abuse because it is coupled with language that allows an 
aggravated felony conviction at any time to be a bar on good 
moral character, sending the impression that dated offenses and 
acts can fit this definition.\23\
---------------------------------------------------------------------------
    \22\ Applicants for certain immigration benefits, including 
naturalization and cancellation of removal must demonstrate ``good 
moral character''. When a person attempts to show good moral character 
for naturalize, s/he must generally show ``good moral character'' for 
the past five years. This section would extend that review period from 
five years to indefinitely for aggravated felonies, regardless of 
whether the crime was classified as an aggravated felony at the time of 
conviction. The bill also adds a clause that Government ``shall not be 
limited to the applicant's conduct during the period for which good 
moral character is required, but may take into considerations as a 
basis determination the applicant's conduct and acts at any time.''
    \23\ Notes from Robert Gibbs: BIEA 612 would give CIS even more 
power to make incorrect good moral character decisions in a couple of 
ways. First, the bill effectively increases the good moral character 
eligibility requirement from five years to lifetime. Sec. 609(a)(3). It 
tries to overturn a recent en banc 9th Cir decision in Hovsepian, 422 
F.3d 883 (9th Cir 2005) which held that since citizenship required good 
moral character for only the past five years, if the applicant showed 
he met that requirement, the CIS could not deny based on an offense 
prior to the five year period. This is a recipe for more delays, 
endless investigations into errors in the distant past. As the Ninth 
Circuit stated in Hovsepian, ``To hold otherwise would sanction a 
denial of citizenship where the applicant's misconduct . . . was many 
years in the past, and where a former bad record has been followed by 
many years of exemplary conduct with every evidence of reformation and 
subsequent good moral character. Such a conclusion would require a 
holding that Congress had enacted a legislative doctrine of 
predestination and eternal damnation, whereas the statutes contemplate 
rehabilitation.'' Hovsepian, supra.
---------------------------------------------------------------------------

 V. THE PROPOSED EMPLOYMENT VERIFICATION SYSTEM ENACTS AN UNWORKABLE, 
 COSTLY GOVERNMENT PERMISSION-TO-WORK SYSTEM THAT WILL NOT RESOLVE THE 
        FLOW OF UNDOCUMENTED WORKERS INTO AMERICAN SEEKING WORK

    Title VII of H.R. 4437 creates a new Government program, 
the Employment Eligibility Verification System (EEVS) by vastly 
expanding the existing Basic Pilot Verification System and 
requiring, for the first time, all employers to seek Government 
consent to retain each and every worker they employ. We do not 
believe that the Majority has thought through costs and legal 
implication of the implementation of such a system, making its 
implementation unwise without further investigation.
    At base, this country simply cannot afford to enact the 
proposed system. Building the type of electronic, employment 
verification system envisioned by this bill that will not delay 
employers and employees unduly will cost at least $11.7 billion 
per year according to the GAO, and that cost will be born 
mostly by employers.\24\ Further, enacting the system will 
mandate the construction of a national ID system, whereby the 
Federal Government will collect and store in Government 
databases every American's most-sensitive, personally-
identifiable information. Recent GAO reports estimate that 
requiring the issuance of a hardened Social Security Card like 
the one necessary for this program to all Americans and lawful 
permanent residents will cost at least $4 billion.
---------------------------------------------------------------------------
    \24\ The GAO cited a study by the Temple University Institute for 
Survey Research and stated that a ``mandatory dial-up version of the 
pilot program for all employers would cost the Federal Government, 
employers, and employees about $11.7 billion total per year, with 
employers bearing most of the costs.'' GAO Report at 29 (emphasis 
added).
---------------------------------------------------------------------------
    The challenge of implementing the massive new system 
envisioned by the Majority would be daunting at best: screening 
the approximately 54 million new hires per year and 146 million 
person workforce. However, there is no guarantee that the 
system will ever work due to the technological hurdles. The 
difficulties posed by the proposed system are well-documented 
by the current Basic Pilot. For example, the entire system 
would be based on databases that are known to contain an 
unacceptable number of errors and that would therefore likely 
yield millions of false determinations.\25\ Workers with 
erroneous information would face layoffs and would be unable to 
work for any lawful business for the weeks or months it would 
take for Government agencies to resolve the problem. Lawful 
employees should not have to fight the Government just to keep 
working. Businesses should not lose experienced employees while 
Government data glitches are resolved.
---------------------------------------------------------------------------
    \25\ As an example of DHS's current incapacity to manage its 
databases, just last month DHS Citizenship and Immigration Services 
(CIS) sent out letters recalling more than 60,000 green cards because a 
computer glitch miscalculated immigrants' residency start dates. Many 
of those letters were incorrect and CIS has announced it will send out 
new letters advising all individuals who received the initial letter in 
error, informing them that their green card was correct and that there 
was no need to return it.
---------------------------------------------------------------------------
    The difficultlies mount for employment-authorized non-
citizens. The records of employment-authorized non-citizens are 
even more inaccurate than those of citizens, so employers would 
be required to spend much more time and money to resolve their 
problems. SSA's databases only automatically verify the status 
of less than 50% of work-authorized non-citizens.\26\ The SSA 
automated approval failure rate is more than 50 times higher 
for work-authorized non-citizens than for citizens.\27\ The 
work-authorized non-citizens whose status cannot be confirmed 
by SSA must be referred to CIS for confirmation. Of these, CIS 
has to verify about 17% manually--a step which substantially 
delays eligibility confirmation.\28\ The EEVS also requires 
employers to collect more data from non-citizens than for 
others.
---------------------------------------------------------------------------
    \26\ USCIS, Report to Congress on the Basic Pilot Program 
(Washington, DC 2004)
    \27\ Ibid.
    \28\ Ibid.
---------------------------------------------------------------------------
    Because of this added average expense and burden for non-
citizens, we are concerned that employers, recruiters, or 
referrers are likely to shy away from employing or assisting 
anyone who looks or sounds foreign. Even worse, the burdensome 
new system would likely be the last straw for many of these 
businesses, potentially sending hundreds of thousands of them 
into the cash economy, completely out of the bounds of 
Government oversight and regulations. Ironically, this would 
likely increase undocumented immigration by creating a hidden 
new employment channel. This potential for exploitation and 
discrimination would be particularly acute for referrers and 
recruiters, who are required to verify employment eligibility 
before taking action.
    The employer sanction system has frequently been abused by 
bad-apple employers who want to intimidate workers who complain 
about job conditions or exercise their workplace rights. Title 
VII exacerbates this problem by allowing employers to 
voluntarily and selectively reverify current workers starting 
two years after enactment so long as they cannot be shown to 
have done so on a discriminatory basis.
    H.R. 4437 includes no procedures, funds or safeguards for 
correcting or updating inaccurate records, other than the 
simple requirement that it be done. Based on the error rate in 
the current pilot program, we could conservatively expect at 
least 3 million initial false negatives (a determination that 
the worker was not employment eligible) among the current 
workforce, many of which would require weeks or months to 
correct during which time it would be illegal to hire the 
worker. As a practical matter, we believe that records should 
be updated before the system goes into effect, for example, by 
setting accuracy standards as triggers before it becomes 
mandatory. This bill does not do that. In fact, it would 
severely limit legal recourse by workers who suffer injuries 
due to systematic agency errors. Under the bill, each wronged 
worker would be limited to individual claims for compensation 
under the Federal Tort Claims Act.
    Of additional concern are the privacy implications raised 
by such a system. To be capable of confirming work-eligibility 
these databases will contain substantial amounts of personally 
identifiable information regarding every citizen and every visa 
holder. The information needed will include name, age, Social 
Security Number and/or another unique identifier, citizenship 
status, period of work-eligibility for non-citizens, address 
(to stamp out ID fraud), and a list of the queries from 
employers, their locations and the dates of those inquiries. 
Further, to resolve data errors, reduce identity fraud and 
distinguish between people with common names, additional 
information distinguishing individuals with the same names may 
be required, which likely necessitates the inclusion in the 
database of a date of birth and, perhaps, other biometric or 
personally identifiable information for every person residing 
in the United States.
    Thus, the database to support such a system will, for the 
first time, list every citizen and every visa holder residing 
in the United States, and, by necessity those who are non-
eligible, but lawfully residing in this country. And, it will 
track their employment history. This is the very essence of a 
National ID system. The establishment of such a system is an 
anathema to rights to privacy under the Fourth Amendment to the 
United States Constitution.\29\ One searches in vain in Title 
VII for provisions that could potentially mitigate these 
serious concerns--such as adequate privacy and civil rights 
safeguards, or protections or recourse for persons who suffer 
termination due to agency error.
---------------------------------------------------------------------------
    \29\ Further, the database itself will be a threat to privacy 
because it will be a prime target of identity thieves. Such an enormous 
database will be impossible to secure, thus any undocumented immigrant 
seeking work will be able to pay hackers to steal work-eligible 
Americans identities. The most obvious targets will be those who are 
work-eligible but who do not work. Moreover, as current events have 
indicated, data breaches and spills are inevitable. Thus, we should 
anticipate significant losses of millions of Americans most sensitive 
information.
---------------------------------------------------------------------------
    Finally, we are again concerned that this proposal is not 
accompanied by comprehensive immigration reform, which would 
provide channels for immigrants to live and work in the U.S. 
legally. Implementation of an employment verification system 
without such reform would invite severe unintended consequences 
such as expansion of the underground economy and increased 
identity theft, fraud, bribery and corruption.

 VI. SECTION 8 OF THE BILL WOULD STRIP FEDERAL COURTS OF JURISDICTION 
 OVER IMMIGRATION CASES AND COMPOUND THE INJUSTICES ALREADY PRESENT IN 
                           THE CURRENT SYSTEM

    Legal immigrants face the risk of mandatory detention and 
automatic deportation for run-ins with the law that are 
considered minor in the case of U.S. citizens, and are 
subjected to judicial proceedings in which speed is valued far 
more than accuracy or fairness. Evidence of the abysmal 
treatment that legal immigrants often face in the judicial 
system can be found in the scathing criticisms emanating even 
from conservative federal courts as they consider appeals of 
the decisions handed down by immigration courts.\30\ Phrases 
like ``ignored the evidence,'' ``riven with error,'' 
``astounding lapse in logic,'' and ``woefully inadequate'' have 
begun to pepper a growing number of these critiques by Federal 
courts. The Majority's solution to these injustices is to strip 
Federal courts of their already limited ability to identify and 
rectify mistakes made by immigration judges.
---------------------------------------------------------------------------
    \30\ The 7th Circuit court of appeals recently noted that it had to 
reverse 40% of these BIA orders in the past year--a vastly higher 
percentage than in other cases where the U.S. Government was the 
appellee (in those cases the reversal rate was 18%).
---------------------------------------------------------------------------
    Section 802 seeks to restrict judicial review of a decision 
by DHS to revoke an individual's visa.\31\ The Majority argues 
that consular decisions are non-reviewable, so revocations 
should likewise be non-reviewable. That argument misses the 
mark. To revoke someone's visa after they have traveled to the 
United States and acted in reliance on the validity of that 
issuance (e.g. moving to the U.S. and beginning employment) is 
very different from denying someone authority to enter the 
country from the outset. We believe that basic principles of 
fairness militate in favor of providing an opportunity to 
challenge the Government's arbitrary reversal of significant 
decision upon which an individual justifiably relied.
---------------------------------------------------------------------------
    \31\ This section would amend INA Sec. 221(i) to eliminate judicial 
review over claims or challenges arising from the revocation of a visa 
after the holder of the visa has entered the U.S., thereby removing any 
judicial oversight over consular decisions. (As background, the House, 
in last year's Intelligence Reform Bill made visa revocation a ground 
of removal, but in conference the Senate added a clause allowing aliens 
facing removal to seek judicial review of their visa revocations.) This 
section would gut the Senate's attempt to inject a measure of due 
process into the revocation process.
---------------------------------------------------------------------------
    Section 803 attempts to negate 9th Circuit precedent that 
prohibits reinstatement of removal without a hearing. It would 
amend INA Sec. 241(a)(5) to state that reinstatement shall not 
require proceedings before an immigration judge under INA 
section 240 or otherwise. Section 803 also would amend INA 
Sec. 242 to restrict any judicial review on the issue of 
reinstatement to the United States Court of Appeals for the 
District of Columbia Circuit and would only allow a challenge 
to the constitutionality of the law or regulations.
    Section 804 is another assault on those who fear 
persecution. ``Withholding of removal'' is a form of protection 
that, while similar to asylum, differs in two important 
respects: (1) it is nondiscretionary and (2) to receive this 
benefit, the alien must meet a higher standard of proof than 
asylum. In the REAL ID Act, Congress amended the asylum 
motivation standard to require an asylum applicant to show that 
one of the five protected characteristics would be ``at least 
one central reason'' for harm in order to receive asylum. 
Section 804 would import the REAL ID Act's ``one central 
reason'' requirement into the withholding statute by amending 
INA Sec. 241(b)(3) to preclude a grant of withholding of 
removal unless the alien can establish that his or her life or 
freedom would be threatened in the country in question, and 
that race, religion, nationality, membership in a particular 
social group, or political opinion would be at least one 
central reason for such threat. The provision would be 
effective retroactive to the date of the REAL ID Act's passage 
into law (May 11, 2005).
    We remain concerned about this standard because it could 
mean that a woman who is raped because she is a woman and 
because she is of a minority religion could apply for 
withholding of removal only if she could prove that the 
persecution based on religion was a central reason, but not if 
it was only one non-central reason while the main reason was 
due to her sex. Sex is not one of the protected categories. 
Proving this ``central reason'' is often difficult in these 
situations considering the many mixed motives for rape of 
minority women.
    Section 805 would severely weaken the right to federal 
court review of erroneous Board of Immigration Review opinions. 
Specifically, section 805 would amend INA Sec. 242(b)(3) to 
implement a process whereby an alien's petition for review 
would be assigned to a single court of appeals judge upon the 
filing of the alien's brief. If the judge issues a 
``certificate of reviewability,'' the case would proceed 
through the normal appellate process. Such certificate, 
however, would issue only if the alien had ``made a substantial 
showing that the petition for review is likely to be granted.'' 
If the alien fails to make such a showing, the single judge 
would deny the petition for review and that decision would be 
unreviewable. In addition, if the judge fails to issue such a 
certificate within 60 days (with certain limited extensions 
available), the petition for review would be deemed denied. If 
no certificate of reviewability is issued, any stay of removal 
would dissolve automatically, the Government would not be 
required to file its brief, and the petitioner could be removed 
without further recourse.
    We strongly object to this proposal. Only months after the 
Majority revamped the statute as part of REAL ID, insisting 
that the circuit courts were the appropriate place for judicial 
review, the bill now seeks to restrict and virtually eliminate 
it altogether. In essence, section 805 unnecessarily initiates 
an unprecedented certiorari process for Article III court 
appeals, at a time when the circuit courts have become 
increasingly critical of the quality of agency decision making.
    The number of cases being reversed and remanded, and the 
percentages cited by the courts themselves, indicates that 
petitions for review being filed today are far from 
``meritless,'' as the Majority contends. Although circuit 
courts have experienced an increase in volume of immigration 
cases (resulting in large part from irresponsible streamlining 
regulations issued by the Department of Justice), they also 
have initiated measures to address the caseflow that are far 
less drastic than those the bill would impose. Given the 
significant role being played by the judiciary in insuring that 
removal decisions comport with due process, we believe the 
degree of interference that the bill requires would undermine 
the court's role in ensuring fairness and providing needed 
oversight. There are far better mechanisms than those the bill 
proposes, which are already in place and working, to address 
the wave of immigration appeals in a way that balances the 
interests of all concerned.\32\
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    \32\ For example, the 2nd Circuit has established a mediation 
program for blocks of cases where appropriate. Other courts such as the 
3rd Circuit have established pro bono referral programs to ensure 
competent representation of aliens in their petitions for review.
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    Congress has contemplated ``court stripping'' legislation 
numerous times including around the issue of desegregation that 
occurred in the 1960s at the height of the modern civil rights 
era. Those proposals were seen for what they were--an attack on 
judges who enforce the Constitution and protect the rights of 
individuals--and were defeated. Likewise opponents of women's 
right to reproductive choice and to separation of church and 
state have tried to strip the courts of their jurisdiction over 
abortion and school prayer cases. In each instance, civil 
rights, civil liberties and women's right communities mobilized 
against the proposed laws, educating the public that taking 
away the court's power to enforce rights is tantamount to 
taking away the rights themselves. When the targets are the 
most vulnerable in our society: immigrants, prisoners and the 
poor, there is less public awareness or opposition but all the 
greater need to defend these constitutional protections of 
fairness.
    Section 806 would prohibit the issuance of a non-immigrant 
visa unless the applicant first waives his or her right to any 
review or appeal of an immigration officer's decision at the 
port of entry as to the alien's admissibility, as well as his 
or her right to contest, other than on the basis of an 
application for asylum, any action for removal of the alien. In 
the Majority's explanation of the bill, they analogize this 
required waiver of due process rights to the existing 
requirement under the Visa Waiver Program.
    This analogy is disingenuous at best, as the class of 
individuals affected under this amendment would include H-1B 
and L-1 visa holders, students, exchange visitors, journalists, 
diplomats, treaty traders, fiances, spouses of United States 
citizens entering on K visas, athletes, entertainers, certain 
aliens with extraordinary ability, cultural exchange visitors, 
religious workers, witnesses, and victims of trafficking. We 
maintain that the entry of these individuals is not analogous 
to that of tourists who, in exchange for being admitted visa-
free for a period of 90 days, agree to waive their right to a 
removal hearing.

VII. H.R. 4437 VIOLATES U.S. OBLIGATIONS TO ASYLUM SEEKERS AND REFUGEES 
                        UNDER INTERNATIONAL LAW

    People seeking asylum in the United States from persecution 
in their home countries would be particularly affected by this 
legislation. Asylum seekers detained upon arrival in the United 
States are already subject to being treated like criminals and 
detained under jail-like conditions for indeterminate periods 
of time. This bill would increase the prolonged detention of 
this vulnerable population, would redefine asylum seekers who 
were simply here out of status as felons under the law, and 
would subject an overwhelming proportion of asylum seekers 
inside the United States to removal without a hearing.
    For those whose cases were decided through the immigration 
court process, the bill would aim to diminish their access to 
judicial review, by subjecting their cases to summary dismissal 
if a single judge of the court of appeals failed to issue them 
a ``certificate of reviewability'' within a 60 day time limit. 
Finally, by attempting to undo the Supreme Court's rulings 
prohibiting the indefinite detention of non-citizens who cannot 
be removed from the United States, the bill would allow asylum 
seekers and refugees who were ordered removed but could not be 
returned to their countries--a situation which historically has 
applied to persons who fled countries ranging from Cambodia to 
Vietnam to Cuba--to be jailed indefinitely, subject to very 
limited administrative and still more limited judicial review.
    Section 203 of the bill would make it a crime to be in the 
U.S. in violation of immigration laws. The radical nature of 
this change to our immigration laws, as applied to non-citizens 
generally, has been noted earlier. As applied to asylum 
seekers, it would also violate U.S. obligations under Article 
31 of the Refugee Convention, which prohibits the penalization 
of asylum seekers for the irregular manner of their entry into 
or presence in the territory of their country of refuge. The 
bill contains no exception for asylum seekers. Nor does it 
contain an exception for other vulnerable populations: victims 
of trafficking, children, young people whose lack of status in 
the U.S. is due to their having been brought here at a young 
age by their parents, battered women, and others whose 
irregular presence in the United States is due to forces beyond 
their control including war or natural disaster in their home 
countries.\33\
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    \33\ For example, under this provision, a person who entered the 
U.S. legally and found herself unable to return to, for example, El 
Salvador, Liberia, Honduras, Burundi, based on circumstances beyond her 
control like civil war or natural disaster, could find herself 
prosecuted, jailed for up to 366 days, and then--as a result of this--
ineligible for TPS if that protection later became available to people 
in her situation.
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    Other sections of the bill that aim to subject an 
increasing proportion of non-citizens to summary removal 
without a hearing also pose particular concerns for refugee 
protection. Section 806 would prohibit the issuance of a non-
immigrant visa to anyone unless the person waives his right, 
not only to review or appeal the decision of a BCBP officer at 
the port of entry that he is inadmissible, but also ``to 
contest, other than on the basis of an application for asylum, 
any action for the removal of the alien.''
    The extreme nature of this proposal as applied to non-
citizens in general has been noted earlier, and despite its 
provision of an exception for asylum claims, it also threatens 
asylum seekers' access to the adjudication process. Persons 
apprehended and deported for overstaying their period of 
authorized admission under the Visa Waiver Program (VWP) are 
not subject even to the limited protections available to asylum 
seekers placed in expedited removal under section 235. The 
extension of these same summary-removal provisions currently 
applicable to VWP entrants to all non-immigrants greatly 
increases the risk of asylum seekers who entered the U.S. 
legally being returned to their countries of persecution 
without ever having an opportunity to make their claims.
    In addition, this provision would appear to prevent those 
who entered on non-immigrant visas and are coming forward 
spontaneously to claim asylum from making an affirmative 
application for asylum before the Asylum Office, in that people 
not eligible for hearings under section 240 are currently 
removed from the Asylum Office's jurisdiction. While being 
inefficient (in forcing the adjudication of all these cases by 
the immigration courts, a much slower, more cumbersome, and 
more expensive process), this provision also has the perverse 
effect of penalizing asylum seekers who entered the United 
States through legal channels for the legality of their 
original entry. And asylum is the only exception this provision 
recognizes, leaving other categories of vulnerable people to be 
deported with no process whatsoever, including children, 
trafficking victims, and persons eligible for relief under 
VAWA, cancellation of removal, or Temporary Protected Status.
    The vast expansion by statute of expedited removal under 
section 401 of this bill, to anyone (other than Mexicans, 
Canadians, and Cubans) present in the U.S. without admission or 
parole and apprehended within 100 miles of an international 
land border of the U.S. and within 14 days of entry, is also of 
serious concern. Although persons seeking asylum would still be 
eligible to be referred for a credible fear interview, the 
expansion of these summary procedures, which place enormous 
unreviewable power into the hands of Border Patrol officers, 
would pose a very serious challenge of training and supervision 
to ensure that refugees are not returned to persecution in 
violation of the United States' obligations under the Refugee 
Convention. Moreover, aside from asylum seekers, this section 
makes no other exceptions for other vulnerable groups who have 
a claim to protection under our laws, including victims of 
trafficking.
    Additionally, for arriving asylum seekers, Section 401, 
would result in increased prolonged detention.\34\ Under the 
permanent regime, however, the person's detention would be 
mandatory until admitted or removed, unless he/she were 
permitted to withdraw his/her application for admission and 
immediately depart the U.S., or were paroled. DHS's use of its 
discretionary parole authority for arriving asylum seekers thus 
far has been erratic--leading, for example, to the 
unaccountable decision last year to detain the Rev. Joseph N. 
Dantica, an 81-year-old Baptist minister from Haiti who arrived 
in the United States on a valid passport and visa and whom DHS 
had the power to release immediately pending his asylum claim, 
but who instead died in DHS custody a few days later.
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    \34\ The provision sets up an interim regime, which would go into 
effect 60 days after enactment of this legislation, and a permanent 
regime, which would go into effect on October 1, 2006. Under the 
interim regime, a person attempting to enter the U.S. illegally and 
apprehended at a U.S. port of entry or along a land or maritime border 
could not be released pending proceedings unless the DHS secretary 
determined (``after conducting all appropriate background and security 
checks on the alien'') that the alien ``does not pose a national 
security risk'' and the alien posted bond of at least $5,000.
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    This bill's overwhelming focus on detention and on filling 
available bed space without providing adequate safeguards sets 
the stage for further tragedies of this sort as automatic 
detention, rather than a reasoned consideration of individual 
circumstances, becomes a reflex.\35\ The Committee in fact 
recognized the problem of substandard, inhumane conditions and 
treatment of immigration detainees through adopting an 
amendment offered by Mr. Scott of Viginia which will require 
the Comptroller General of the United States to report to 
Congress on the deaths in custody of detainees held on 
immigration violations.\36\
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    \35\ In this regard, we recognize the importance of Congressman 
Meek's amendment to the House's Border Security and Terrorism 
Prevention Act of 2005 (H.R. 4312) entitled ``The Security Immigration 
Coordination and Oversight Act'' which provided simple protections for 
immigrant detainees. For example, the amendment called for families to 
be detained together and not separated, as current policy dictates. The 
amendment also included language mandating access to medical care for 
these vulnerable detainees, many of whom have experienced rape, torture 
and other human rights abuses. It also sought to increase the 
effectiveness of the Department of Homeland Security's Policy 
Directorate, codify detention standards and provide for a high level 
officer in charge of monitoring detention conditions. Had the measure 
passed, it would have directed DHS to create enforceable regulations on 
the treatment of immigrants, asylum-seekers, refugees and other 
vulnerable groups that promote a balance between law enforcement and 
humanitarian considerations.
    \36\ Mr. Scott's amendment was timely considering the shocking, 
gut-wrenching expose entitled ``The Death of Richard Rust'' which aired 
on National Public Radio's All Things Considered on December 5, 2005, 
available http://www.npr.org/templates/story/story.php?storyI. In this 
expose, Daniel Zwerdling examines how Richard Rust, a 34-year-old 
Jamaican detainee in Louisiana's Oakdale Federal Detention Center, 
collapsed and died after Government employees apparently disregarded 
national medical standards by neglecting to give him basic emergency 
care. Prison employees subsequently put dozens of immigrants at Oakdale 
in near-solitary confinement after they protested what had happened. 
The Department of Homeland Security refused to be interview for the 
report.
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    For persons, including asylum seekers and refugees, whose 
cases were ultimately denied but who could not be returned to 
their countries of origin, Section 602, as described in more 
detail in earlier sections of this document, would allow them 
to be jailed indefinitely subject to very limited review. This 
section could subject large numbers of asylum seekers, 
refugees, and nationals of countries like Cuba to prolonged 
indefinite detention for reasons beyond their control and 
subject to inadequate review.

                               CONCLUSION

    There is an urgent need and desire for real solutions that 
could truly address our immigration problems. H.R. 4437 does 
not deliver, and represents yet another failed opportunity. As 
it stands, this bill is just another in a long line of get-
tough immigration bills that have only succeeded in 
exacerbating our problems. Since 1995, Congress has enacted an 
average of nearly one such bill every year. Enactment of H.R. 
4437 would represent the third time in just the last 12 months 
that we would have done so. Last December we passed 
intelligence reform, which included significant immigration 
enforcement provisions, and then in May we passed the REAL ID 
Act which was supposed to bring our immigration situation under 
control. No sooner do we enact such legislation than it is 
forgotten--except by those charged with implementing failed 
concepts that sounded good in a press release--and calls begin 
for yet another get-tough bill.
    After numerous such bills in the last decade of GOP 
control, net illegal immigration is at its highest level ever, 
and there are an estimated 11 million undocumented immigrants 
in the U.S. We believe that it is well past time to re-consider 
our approach. As Members on both sides of the aisle now 
recognize, our immigration enforcement mechanisms will not work 
until we reform the system they are intended to enforce. It is 
time to enact comprehensive legislation that resolves the 
status of undocumented immigrants who work and pay taxes in our 
country, accommodates the future flows that will be necessary 
for our economy, and prevents the needless separation of 
families.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Linda T. Sanchez.
                                   Chris Van Hollen.
                                   Debbie Wasserman Schultz.