Text of S. 2368 (109th): Border Security and Interior Enforcement Improvement Act of 2006 (Introduced version)

109th CONGRESS

2d Session

S. 2368

IN THE SENATE OF THE UNITED STATES

March 3, 2006

Mr. Nelson of Nebraska (for himself, Mr. Sessions, and Mr. Coburn) introduced the following bill; which was read twice and referred to the Committee on Finance

A BILL

To amend the Immigration and Nationality Act and other Acts to provide for border security and interior enforcement improvements, and for other purposes.

(a)

This Act may be cited as the Border Security and Interior Enforcement Improvement Act of 2006.

(b)

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Severability.

TITLE I—Southwest Border Security

Sec. 101. Construction of fencing and security improvements in border area from Pacific Ocean to Gulf of Mexico.

Sec. 102. Border patrol agents.

Sec. 103. Increased availability of Department of Defense equipment to assist with surveillance of southern international land border of the United States.

Sec. 104. Ports of entry.

Sec. 105. Authorization of appropriations.

TITLE II—Federal, State, and Local Law Enforcement

Subtitle A—Additional Federal Resources

Sec. 201. Necessary assets for controlling United States borders.

Sec. 202. Additional immigration personnel.

Sec. 203. Additional worksite enforcement and fraud detection agents.

Sec. 204. Document fraud detection.

Sec. 205. Powers of immigration officers and employees.

Subtitle B—Maintaining Accurate Enforcement Data on Aliens

Sec. 211. Entry-exit system.

Sec. 212. State and local law enforcement provision of information regarding aliens.

Sec. 213. Listing of immigration violators in the National Crime Information Center database.

Sec. 214. Determination of immigration status of individuals charged with Federal offenses.

Subtitle C—Detention of Aliens and Reimbursement of Costs

Sec. 221. Increase of Federal detention space and the utilization of facilities identified for closures as a result of the Defense Base Closure Realignment Act of 1990.

Sec. 222. Federal custody of illegal aliens apprehended by State or local law enforcement.

Sec. 223. Institutional Removal Program.

Subtitle D—State, Local, and Tribal Enforcement of Immigration Laws

Sec. 231. Congressional affirmation of immigration law enforcement authority by States and political subdivisions of States.

Sec. 232. Immigration law enforcement training of State and local law enforcement personnel.

Sec. 233. Immunity.

TITLE III—Visa Reform and Alien Status

Subtitle A—Limitations on visa issuance and validity

Sec. 301. Curtailment of visas for aliens from countries denying or delaying repatriation of nationals.

Sec. 302. Judicial review of visa revocation.

Sec. 303. Elimination of diversity immigrant program.

Sec. 304. Completion of background and security checks.

Sec. 305. Naturalization and good moral character.

Sec. 306. Denial of benefits to terrorists and criminals.

Sec. 307. Repeal of adjustment of status of certain aliens physically present in United States under section 245(i).

Sec. 308. Grounds of Inadmissibility and Removability for Persecutors.

Sec. 309. Technical Corrections to SEVIS Reporting Requirements.

TITLE IV—Workplace enforcement and identification integrity

Subtitle A—In General

Sec. 401. Short title.

Sec. 402. Findings.

Subtitle B—Employment Eligibility Verification System

Sec. 411. Employment Eligibility Verification System.

Sec. 412. Employment eligibility verification process.

Sec. 413. Expansion of employment eligibility verification system to previously hired individuals and recruiting and referring.

Sec. 414. Extension of preemption to required construction of day laborer shelters.

Sec. 415. Basic pilot program.

Sec. 416. Protection for United States workers and individuals reporting immigration law violations.

Sec. 417. Penalties.

Subtitle C—Work Eligibility Verification Reform in the Social Security Administration

Sec. 421. Verification responsibilities of the Commissioner of Social Security.

Sec. 422. Notification by commissioner of failure to correct social security information.

Sec. 423. Restriction on access and use.

Sec. 424. Sharing of information with the commissioner of Internal Revenue Service.

Sec. 425. Sharing of information with the Secretary of Homeland Security.

Subtitle D—Employment Eligibility Verification System Reform in the Internal Revenue Agency

Sec. 431. Sharing of information with the Secretary of Homeland Security and the Commissioner of Social Security.

Sec. 432. Ineligibility for nonresident alien tax status and the Earned Income Tax Credit for unauthorized work.

Sec. 433. Lawful use of individual taxpayer identification numbers.

Sec. 434. No deduction allowed for compensation paid to unauthorized workers.

Subtitle E—Identification Document Integrity

Sec. 441. Consular identification documents.

Sec. 442. Machine-readable tamper-resistant immigration documents.

Subtitle F—Limitations on Illegal Alien Collection of Social Security

Sec. 451. Exclusion of unauthorized employment from employment upon which creditable wages may be based.

Sec. 452. Exclusion of unauthorized functions and services from trade or business from which creditable self-employment income may be derived.

Sec. 453. Effective date.

Subtitle G—Effective date; authorization of appropriations

Sec. 461. Effective date.

Sec. 462. Authorization of appropriations.

TITLE V—Penalties and Enforcement

Subtitle A—Criminal and Civil Penalties

Sec. 501. Alien smuggling and related offenses.

Sec. 502. Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements.

Sec. 503. Improper entry by, or presence of, aliens.

Sec. 504. Fees and Employer Compliance Fund.

Sec. 505. Reentry of removed alien.

Sec. 506. Civil and criminal penalties for document fraud, benefit fraud, and false claims of citizenship.

Sec. 507. Rendering inadmissible and deportable aliens participating in criminal street gangs.

Sec. 508. Mandatory detention of suspected criminal street gang members.

Sec. 509. Ineligibility for asylum and protection from removal.

Sec. 510. Penalties for misusing social security numbers or filing false information with Social Security Administration.

Sec. 511. Technical and clarifying amendments.

Subtitle B—Detention, Removal, and Departure

Sec. 521. Voluntary departure reform.

Sec. 522. Release of aliens in removal proceedings.

Sec. 523. Expedited removal.

Sec. 524. Reinstatement of previous removal orders.

Sec. 525. Cancellation of removal.

Sec. 526. Detention of dangerous alien.

Sec. 527. Alternatives to detention.

Sec. 528. Authorization of appropriations.

If any provision of this Act, any amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such holding.

101.

(a)

Section 102(b)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 8 U.S.C. 1103 note) is amended to read as follows—

(1)

(A)

(i)

In carrying out subsection (a), the Secretary of Homeland Security shall create and control a border zone, along the international land border between the United States and Mexico, subject to the following conditions:

(I)

The border zone shall consist of the United States land area within 100 yards of such international land border, except that with respect to areas of the border zone that are contained within an organized subdivision of a State or local government, the Secretary may adjust the area included in the border zone to accommodate existing public and private structures.

(II)

Not later than 30 days after the date of the enactment of the Border Security and Interior Enforcement Improvement Act of 2006, the head of each Federal agency having jurisdiction over Federal land included in the border zone shall transfer such land, without reimbursement, to the administrative jurisdiction of the Secretary of Homeland Security.

(III)

Before installing any fencing or other physical barriers, roads, lighting, or sensors under subparagraph (B) on land transferred by the Secretary of Defense under subclause (II), the Secretary of Homeland Security shall consult with the Secretary of Defense for purposes of mitigating or limiting the impact of the fencing, barriers, roads, lighting, and sensors on military training and operations.

(ii)

The Secretary may authorize the use of land included in the border zone for other purposes so long as such use does not impede the operation or effectiveness of the security features installed under subparagraph (B) or the ability of the Secretary to carry out subsection (a).

(B)

In carrying out subsection (a), the Secretary of Homeland Security shall provide for—

(i)

the construction along the southern international land border between the United States and Mexico, starting at the Pacific Ocean and extending eastward to the Gulf of Mexico, of at least 2 layers of reinforced fencing; and

(ii)

the installation of such additional physical barriers, roads, lighting, ditches, and sensors along such border as may be necessary to eliminate illegal crossings and facilitate legal crossings along such border.

(C)

With respect to the border described in subparagraph (B), the Secretary shall ensure that initial fence construction occurs in high traffic and smuggling areas along such border.

(b)

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 8 U.S.C. 1103 note) as amended by subsection (a) is further amended—

(1)

in subsection (a), by striking Attorney General, in consultation with the Commissioner of Immigration and Naturalization, and inserting Secretary of Homeland Security;

(2)

in subsection (b), by striking the heading and inserting Border zone creation and reinforced fending—; and

(3)

by striking Attorney General each place it appears and inserting Secretary of Homeland Security.

102.

Section 5202 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3734) is amended—

(1)

by striking 2010 both places it appears and inserting 2011; and

(2)

by striking 2,000 and inserting 3,000.

103.

(a)

The Secretary of Defense and the Secretary of Homeland Security shall develop and implement a 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 Department of Homeland Security surveillance activities conducted at or near the southern international land border of the United States.

(b)

Not later than 6 months after the date of the enactment of this Act, the Secretary of Defense and the Secretary of Homeland Security shall submit a report to Congress that contains—

(1)

a description of the current use of Department of Defense equipment to assist with Department of Homeland Security surveillance of the southern international land border of the United States;

(2)

the plan developed under subsection (a) to increase the use of Department of Defense equipment to assist with such surveillance activities; and

(3)

a description of the types of equipment and other support to be provided by Department of Defense under such plan during the 1-year period beginning after submission of the report.

104.

To facilitate legal trade, commerce, tourism, and legal immigration, the Secretary of Homeland Security is authorized to—

(1)

construct additional ports of entry along the international land border of the United States, at locations to be determined by the Secretary; and

(2)

make necessary improvements to the ports of entry in existence on the date of the enactment of this Act.

105.

(a)

There are authorized to be appropriated $5,000,000,000 to carry out section 102(b)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 8 U.S.C. 1103), as amended by section 101. Such sums shall be available until expended.

(b)

There are authorized to be appropriated $3,000,000,000 to carry out section 5202 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3734), as amended by section 102.

(c)

There are authorized to be appropriated $125,000,000 to carry out section 104.

(d)

Section 102(b)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is repealed.

201.

(a)

(1)

In each of the fiscal years 2007 through 2011, the Secretary of Homeland Security shall increase by not less than 250 the number of positions for full-time active duty Customs and Border Protection officers.

(2)

There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2007 through 2011 to carry out paragraph (1).

(b)

(1)

The Secretary of Homeland Security shall procure unmanned aerial vehicles, cameras, poles, sensors, and other technologies necessary to achieve operational control of the borders of the United States.

(2)

There are authorized to be appropriated $500,000,000 for each of fiscal years 2007 through 2011 to carry out paragraph (1).

(c)

Notwithstanding any other provision of law or regulation, temporary or permanent checkpoints may be maintained on roadways in border patrol sectors close to the international land borders of the United States in such locations and for such time period durations as the Secretary of Homeland Security, in the Secretary's sole discretion, determines necessary.

202.

(a)

(1)

In addition to the positions authorized under section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3734), for each of fiscal years 2007 through 2011, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not less than 200 the number of positions for investigative personnel within the Department of Homeland Security investigating alien smuggling and immigration status violations above the number of such positions for which funds were made available during the preceding fiscal year.

(2)

In each of fiscal years 2007 through 2011, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase the number of positions for attorneys in the Office of General Counsel of the Department of Homeland Security who represent the Department in immigration matters by not less than 100 above the number of such positions for which funds were made available during each preceding fiscal year.

(3)

There are authorized to be appropriated to the Department of Homeland Security for each of fiscal years 2007 through 2011 such sums as may be necessary to carry out this subsection.

(b)

(1)

(A)

There is established within the Department of Justice the position of Assistant Attorney General for Immigration Enforcement. The Assistant Attorney General for Immigration Enforcement shall coordinate and prioritize immigration litigation and enforcement in the Federal courts, including—

(i)

removal and deportation;

(ii)

employer sanctions; and

(iii)

alien smuggling and human trafficking.

(B)

Section 506 of title 28, United States Code, is amended by striking ten and inserting 11.

(2)

In each of fiscal years 2007 through 2011, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of positions for attorneys in the Office of Immigration Litigation of the Department of Justice above the number of such positions for which funds were made available during the preceding fiscal year.

(3)

In each of fiscal years 2007 through 2011, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of Assistant United States Attorneys to litigate immigration cases in the Federal courts above the number of such positions for which funds were made available during the preceding fiscal year.

(4)

In each of fiscal years 2007 through 2011, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of immigration judges above the number of such positions for which funds were made available during the preceding fiscal year.

(5)

There are authorized to be appropriated to the Department of Justice for each of fiscal years 2007 through 2011 such sums as may be necessary to carry out this subsection, including the hiring of necessary support staff.

203.

(a)

In each of fiscal years 2007 through 2011, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not less than 2,000, the number of positions for investigators dedicated to enforcing compliance with sections 274 and 274A of the Immigration and Nationality Act (8 U.S.C. 1324, 1324a) above the number of such positions in which funds were made available during the preceding fiscal year.

(b)

In each of fiscal years 2007 through 2011, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not less than 1,000 the number of positions for Immigration Enforcement Agents dedicated to immigration fraud detection above the number of such positions in which funds were made available during the preceding fiscal year.

(c)

There are authorized to be appropriated during each of fiscal years 2007 through 2011 such sums as may be necessary to carry out this section.

204.

(a)

The Secretary of Homeland Security shall provide all customs and border protection officers with training in identifying and detecting fraudulent travel documents. Such training shall be developed in consultation with the Forensic Document Laboratory of the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security.

(b)

The Secretary of Homeland Security shall provide all officers of the Bureau of Customs and Border Protection with access to the Forensic Document Laboratory.

(c)

There are authorized to be appropriated $5,000,000 for each of fiscal years 2007 through 2011 to carry out this section.

205.

Section 287(a) of the Immigration and Nationality Act (8 U.S.C. 1357(a)) is amended—

(1)

by striking paragraph (5) and the 2 undesignated paragraphs following paragraph (5);

(2)

in the material preceding paragraph (1)—

(A)

by striking (a) Any and inserting (a)(1) Any; and

(B)

by striking Service and inserting Department of Homeland Security;

(3)

by redesignating paragraphs (1), (2), (3), and (4) as subparagraphs (A), (B), (C), and (D), respectively; and

(4)

by inserting after subparagraph (D), as redesignated by paragraph (3), the following:

(E)

to make arrests—

(i)

for any offense against the United States, if the offense is committed in the officer's or employee's presence; or

(ii)

for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.

(2)

Under regulations prescribed by the Attorney General or the Secretary of Homeland Security, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States.

211.

(a)

Section 110(b)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a(b)(1)) is amended to read as follows:

(1)

provides access to, and integrates, arrival and departure data of all aliens who arrive and depart at ports of entry, in an electronic format and in a database of the Department of Homeland Security or the Department of State (including those created or used at ports of entry and at consular offices);

(b)

Section 110(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a(c)) is amended to read as follows:

(c)

Nothing in this section shall be construed to reduce or curtail any authority of the Secretary of Homeland Security or the Secretary of State under any other provision of law.

(c)

Section 110(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a(d)) is amended—

(1)

in paragraph (1), by striking December 31, 2003 and inserting October 1, 2006; and

(2)

by amending paragraph (2) to read as follows:

(2)

Not later than October 1, 2006, the Secretary of Homeland Security shall implement the integrated entry and exit data system using the data described in paragraph (1) and available alien arrival and departure data described in subsection (b)(1) pertaining to aliens arriving in, or departing from, the United States at all land border ports of entry. Such implementation shall include ensuring that such data, when collected or created by an immigration officer at a port of entry, are entered into the system and can be accessed by immigration officers at airports, seaports, and other land border ports of entry.

(d)

Section 110(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a(f)(1)) is amended by adding at the end: The Secretary of Homeland Security shall ensure that any officer or employee of the Department of Homeland Security or the Department of State having need to access the data contained in the integrated entry and exit data system for any lawful purpose under the Immigration and Nationality Act has such access, including access for purposes of representation of the Department of Homeland Security in removal proceedings under section 240 of such Act and adjudication of applications for benefits under such Act..

(e)

Not later than October 1, 2006, the Secretary of Homeland Security shall—

(1)

in consultation with the Attorney General, enhance connectivity between the automated biometric fingerprint identification system (IDENT) of the Department of Homeland Security and the integrated automated fingerprint identification system (IAFIS) of the Federal Bureau of Investigation fingerprint databases to ensure more expeditious data searches; and

(2)

in consultation with the Secretary of State, collect all 10 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. 1365a), as amended by this section.

212.

(a)

A statute, policy, or practice that prohibits, or restricts in any manner, a law enforcement or administrative enforcement officer of a State or of a political subdivision therein, from enforcing Federal immigration laws or from assisting or cooperating with Federal immigration law enforcement in the course of carrying out the investigative or enforcement duties of the officer or from providing information to an official of the United States Government regarding the immigration status of an individual who is believed to be illegally present in the United States, is in violation of section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373(a)) and section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644).

(b)

(1)

(A)

In compliance with section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373(a)) and section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644), each law enforcement agency of a State or of a political subdivision therein shall provide to the Department of Homeland Security the information listed in paragraph (2) for each alien who is apprehended in the jurisdiction of such agency and who cannot produce the valid certificate of alien registration or alien registration receipt card described in section 264(d) of the Immigration and Nationality Act (8 U.S.C. 1304(d)).

(B)

Not later than 15 days after an alien described in subparagraph (A) is apprehended, information required to be provided under subparagraph (A) shall be provided in such form and in such manner as the Secretary of Homeland Security may, by regulation or guideline, require.

(C)

The reporting requirement in paragraph (A) shall not apply in the case of any alien determined to be lawfully present in the United States.

(2)

The information listed in this subsection is as follows:

(A)

The alien’s name.

(B)

The alien’s address or place of residence.

(C)

A physical description of the alien.

(D)

The date, time, and location of the encounter with the alien and reason for stopping, detaining, apprehending, or arresting the alien.

(E)

If applicable—

(i)

the alien’s driver’s license number and the State of issuance of such license;

(ii)

the type of any other identification document issued to the alien, any designation number contained on the identification document, and the issuing entity for the identification document;

(iii)

the license number and description of any vehicle registered to, or operated by, the alien; and

(iv)

a photo of the alien and a full set of the alien's 10 rolled fingerprints, if available or readily obtainable.

(3)

The Secretary of Homeland Security shall reimburse such law enforcement agencies for the costs, per a schedule determined by the Secretary, incurred by such agencies in collecting and transmitting the information described in paragraph (2).

(c)

(1)

(A)

Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended—

(i)

in subsections (a), (b)(1), and (c), by striking Immigration and Naturalization Service each place it appears and inserting Department of Homeland Security; and

(ii)

in the heading by striking Immigration and Naturalization Service and inserting Department of Homeland Security.

(B)

Section 1(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–546) is amended by striking the item related to section 642 and inserting the following:

Sec. 642. Communication between government agencies and the Department of Homeland Security.

(2)

(A)

Section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644) is amended—

(i)

by striking Immigration and Naturalization Service and inserting Department of Homeland Security; and

(ii)

in the heading by striking Immigration and Naturalization Service and inserting Department of Homeland Security.

(B)

Section 2 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1642) is amended by striking the item related to section 434 and inserting the following:

Sec. 434. Communication between State and local government agencies and the Department of Homeland Security.

(d)

There is authorized to be appropriated such sums as may be necessary to carry out the requirements of this section.

213.

(a)

(1)

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall provide to the head of the National Crime Information Center of the Department of Justice the information that the Secretary of Homeland Security has or maintains related to any alien—

(A)

against whom a final order of removal has been issued;

(B)

who enters into a voluntary departure agreement, or is granted voluntary departure by an immigration judge, whose period for departure has expired under subsection (a)(2) or (b)(2) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) or who has violated a condition of a voluntary departure agreement under such section 240B;

(C)

detained by a Federal, State, or local law enforcement agency whom a Federal immigration officer has confirmed to be unlawfully present in the United States but, in the exercise of discretion, has been released from detention without transfer into the custody of a Federal immigration officer;

(D)

who has remained in the United States beyond the alien's authorized period of stay; and

(E)

whose visa has been revoked.

(2)

The head of the National Crime Information Center should promptly remove any information provided by the Secretary of Homeland Security under paragraph (1) related to an alien who is granted lawful authority to enter or remain legally in the United States.

(b)

Section 534(a) of title 28, United States Code, is amended—

(1)

in paragraph (3), by striking and at the end;

(2)

by redesignating paragraph (4) as paragraph (5); and

(3)

by inserting after paragraph (3) the following new paragraph:

(4)

acquire, collect, classify, and preserve records of violations of the immigration laws of the United States, regardless of whether the alien has received notice of the violation or the alien has already been removed; and

214.

(a)

Beginning 2 years after the date of the enactment of this Act, the office of the United States attorney that is prosecuting a criminal case in a Federal court—

(1)

shall determine, not later than 30 days after filing the initial pleadings in the case, whether each defendant in the case is lawfully present in the United States (subject to subsequent legal proceedings to determine otherwise);

(2)

(A)

if the defendant is determined to be an alien lawfully present in the United States, shall notify the court in writing of the determination and the current status of the alien under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and

(B)

if the defendant is determined not to be lawfully present in the United States, shall notify the court in writing of the determination, the defendant’s alien status, and, to the extent possible, the country of origin or legal residence of the defendant; and

(3)

ensure that the information described in paragraph (2) is included in the case file and the criminal records system of the office of the United States attorney.

(b)

A determination made under subsection (a)(1) shall be made in accordance with guidelines of the Executive Office for Immigration Review of the Department of Justice.

(c)

(1)

Not later than 2 years after the date of the enactment of this Act, all Federal courts that hear criminal cases, or appeals of criminal cases, shall modify their criminal records and case management systems, in accordance with guidelines which the Director of the Administrative Office of the United States Courts shall establish, so as to enable accurate reporting of information described in subsection (a)(2).

(2)

Beginning 2 years after the date of the enactment of this Act, each Federal court described in paragraph (1) shall enter into its electronic records the information contained in each notification to the court under subsection (a)(2).

(d)

The Director of the Administrative Office of the United States Courts shall include, in the annual report filed with the Congress under section 604 of title 28, United States Code—

(1)

statistical information on criminal trials of aliens in the courts and criminal convictions of aliens in the lower courts and upheld on appeal, including the type of crime in each case and including information on the legal status of the aliens; and

(2)

recommendations on whether additional court resources are needed to accommodate the volume of criminal cases brought against aliens in the Federal courts.

(e)

There are authorized to be appropriated for each of fiscal years 2007 through 2012, such sums as may be necessary to carry out this Act. Funds appropriated pursuant to this subsection in any fiscal year shall remain available until expended.

221.

(a)

(1)

The Secretary of Homeland Security shall construct or acquire, in addition to existing facilities for the detention of aliens, 20 detention facilities in the United States that have the capacity to detain a combined total of not less than 10,000 individuals at any time for aliens detained pending removal or a decision on removal of such aliens from the United States.

(2)

The location of any detention facility built or acquired in accordance with this subsection shall be determined with the concurrence of the Secretary by the senior officer responsible for Detention and Removal Operations in the Department of Homeland Security. The detention facilities shall be located so as to enable the Department to increase to the maximum extent practicable the annual rate and level of removals of illegal aliens from the United States.

(3)

In acquiring detention facilities under this subsection, the Secretary of Homeland Security shall consider the transfer of appropriate portions of military installations approved for closure or realignment under the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. 2687 note) for use in accordance with paragraph (1).

(b)

Section 241(g)(1) of the Immigration and Nationality Act (8 U.S.C. 1231(g)(1)) is amended by striking may expend and inserting shall expend.

(c)

There are authorized to be appropriated such sums as may be necessary to carry out this section.

222.

(a)

Title II of the Immigration and Nationality Act (8 U.S.C. 1151 et seq.) is amended by adding after section 240C the following new section:

240D.

(a)

If the head of a law enforcement entity of a State (or, if appropriate, a political subdivision of the State) exercising authority with respect to the apprehension or arrest of an illegal alien submits a request to the Secretary of Homeland Security that the alien be taken into Federal custody, the Secretary of Homeland Security—

(1)

shall—

(A)

deem the request to include the inquiry to verify immigration status described in section 642(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373(c)), and expeditiously inform the requesting entity whether such individual is an illegal alien; and

(B)

if the individual is an illegal alien, either—

(i)

not later than 72 hours after the conclusion of the State charging process or dismissal process, or if no State charging or dismissal process is required, not later than 72 hours after the illegal alien is apprehended, take the illegal alien into the custody of the Federal Government and incarcerate the alien; or

(ii)

request that the relevant State or local law enforcement agency temporarily detain or transport the illegal alien to a location for transfer to Federal custody; and

(2)

shall designate at least 1 Federal, State, or local prison or jail or a private contracted prison or detention facility within each State as the central facility for that State to transfer custody of criminal or illegal aliens to the Department of Homeland Security.

(b)

(1)

The Secretary of Homeland Security shall reimburse a State or a political subdivision of a State for expenses, as verified by the Secretary of Homeland Security, incurred by the State or political subdivision in the detention and transportation of a criminal or illegal alien as described in subparagraphs (A) and (B) of subsection (a)(1).

(2)

Compensation provided for costs incurred under subparagraphs (A) and (B) of subsection (a)(1) shall be—

(A)

the product of—

(i)

the average daily cost of incarceration of a prisoner in the relevant State, as determined by the chief executive officer of a State (or, as appropriate, a political subdivision of the State); multiplied by

(ii)

the number of days that the alien was in the custody of the State or political subdivision; plus

(B)

the cost of transporting the criminal or illegal alien from the point of apprehension or arrest to the location of detention, and if the location of detention and of custody transfer are different, to the custody transfer point; plus

(C)

the cost of uncompensated emergency medical care provided to a detained illegal alien during the period between the time of transmittal of the request described in subsection (a) and the time of transfer into Federal custody.

(c)

The Secretary of Homeland Security shall ensure that illegal aliens incarcerated in a Federal facility pursuant to this subsection are held in facilities which provide an appropriate level of security, and that, where practicable, aliens detained solely for civil violations of Federal immigration law are separated within a facility or facilities.

(d)

In carrying out this section, the Secretary of Homeland Security shall establish a regular circuit and schedule for the prompt transportation of apprehended illegal aliens from the custody of those States and political subdivisions of States which routinely submit requests described in subsection (a) into Federal custody.

(e)

(1)

The Secretary of Homeland Security may enter into contracts or cooperative agreements with appropriate State and local law enforcement and detention agencies to implement this section.

(2)

Prior to entering into a contract or cooperative agreement with a State or political subdivision of a State under paragraph (1), the Secretary shall determine whether the State, or where appropriate, the political subdivision in which the agencies are located has in place any formal or informal policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373). The Secretary shall not allocate any of the funds made available under this section to any State or political subdivision that has in place a policy that violates such section.

(f)

In this section, the term illegal alien means an alien who—

(1)

entered the United States without inspection or at any time or place other than that designated by the Secretary of Homeland Security;

(2)

was admitted as a nonimmigrant and who, at the time the alien was taken into custody by the State or a political subdivision of the State, had failed to—

(A)

maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248; or

(B)

comply with the conditions of any such status;

(3)

was admitted as an immigrant and has subsequently failed to comply with the requirements of that status; or

(4)

failed to depart the United States under a voluntary departure agreement or under a final order of removal.

(b)

There are authorized to be appropriated $850,000,000 for fiscal year 2007 and each subsequent fiscal year for the detention and removal of aliens not lawfully present in the United States under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

223.

(a)

(1)

The Secretary of Homeland Security shall continue to operate the Institutional Removal Program or develop and implement any other program to—

(A)

identify removable criminal aliens in Federal and State correctional facilities;

(B)

ensure that such aliens are not released into the community; and

(C)

remove such aliens from the United States after the completion of their sentences.

(2)

The Secretary of Homeland Security shall extend the institutional removal program to all States. Each State should—

(A)

cooperate with officials of the Federal Institutional Removal Program;

(B)

expeditiously and systematically identify criminal aliens in its prison and jail populations; and

(C)

promptly convey the information collected under subparagraph (B) to officials of the Institutional Removal Program.

(b)

Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373), is amended by adding at the end the following:

(d)

Law enforcement officers of a State or political subdivision of a State are authorized to—

(1)

hold an illegal alien for a period of up to 14 days after the alien has completed the alien’s State prison sentence in order to effectuate the transfer of the alien to Federal custody when the alien is removable or not lawfully present in the United States; or

(2)

issue a detainer that would allow aliens who have served a State prison sentence to be detained by the State prison until personnel from the Bureau of Immigration and Customs Enforcement can take the alien into custody.

(e)

Technology such as videoconferencing shall be used to the maximum extent practicable in order to make the Institutional Removal Program available in remote locations. Mobile access to Federal databases of aliens, such as the automated biometric fingerprint identification system (IDENT) of the Department of Homeland Security, and live scan technology shall be used to the maximum extent practicable in order to make these resources available to State and local law enforcement agencies in remote locations.

(f)

Not later than 1 year after the date of the enactment of the Border Security and Interior Enforcement Improvement Act of 2006, the Secretary of Homeland Security shall submit to Congress a report on the participation of States in the Institutional Removal Program and in any other program carried out under subsection (a).

(g)

There are authorized to be appropriated to carry out the Institutional Removal Program—

(1)

$30,000,000 for fiscal year 2007;

(2)

$40,000,000 for fiscal year 2008;

(3)

$50,000,000 for fiscal year 2009;

(4)

$60,000,000 for fiscal year 2010; and

(5)

$70,000,000 for fiscal year 2011 and each fiscal year thereafter.

231.

Notwithstanding any other provision of law and reaffirming the existing inherent authority of States, law enforcement personnel of a State or a political subdivision of a State have the inherent authority of a sovereign entity to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens in the United States (including the transportation of such aliens across State lines to detention centers), for the purpose of assisting in the enforcement of the immigration laws of the United States in the normal course of carrying out the law enforcement duties of such personnel. This State authority has never been displaced or preempted by a Federal law.

232.

(a)

(1)

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall establish—

(A)

a training manual for law enforcement personnel of a State or political subdivision of a State to train such personnel in the investigation, identification, apprehension, arrest, detention, and transfer to Federal custody of aliens in the United States (including the transportation of such aliens across State lines to detention centers and the identification of fraudulent documents); and

(B)

an immigration enforcement pocket guide for law enforcement personnel of a State or political subdivision of a State to provide a quick reference for such personnel in the course of duty.

(2)

The training manual and pocket guide established in accordance with paragraph (1) shall be made available to all State and local law enforcement personnel.

(3)

Nothing in this subsection shall be construed to require State or local law enforcement personnel to carry the training manual or pocket guide established in accordance with paragraph (1) with them while on duty.

(4)

The Secretary of Homeland Security shall be responsible for any and all costs incurred in establishing the training manual and pocket guide under this subsection.

(b)

(1)

The Secretary of Homeland Security shall make training of State and local law enforcement officers available through as many means as possible, including residential training at the Center for Domestic Preparedness of the Department of Homeland Security, on-site training held at State or local police agencies or facilities, online training courses by computer, teleconferencing, and videotape, or the digital video display (DVD) of a training course or courses.

(2)

The head of the Distributed Learning Program of the Federal Law Enforcement Training Center shall make training available for State and local law enforcement personnel via the Internet through a secure, encrypted distributed learning system that has all its servers based in the United States.

(3)

The training of State and local law enforcement personnel under this section shall not displace the training of Federal personnel.

(c)

Not later than 2 years after the date of the enactment of this Act, the Secretary shall negotiate and execute, where practicable, a cooperative enforcement agreement described in section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) with at least 1 law enforcement agency in each State, to train law enforcement officers in the detection and apprehension of individuals engaged in transporting, harboring, sheltering, or encouraging aliens in violation of section 274 of such Act (8 U.S.C. 1324).

(d)

Section 287(g)(2) of the Immigration and Nationalization Act (8 U.S.C. 1357(g)(2)) is amended by adding at the end Such training may not exceed 14 days or 80 hours of classroom training..

(e)

Nothing in this Act or any other provision of law shall be construed as making any immigration-related training a requirement for, or prerequisite to, any State or local law enforcement officer exercising the inherent authority of the officer to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody illegal aliens during the normal course of carrying out the law enforcement duties of the officer.

(f)

Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) is amended by striking Attorney General each place it appears and inserting Secretary of Homeland Security.

233.

(a)

Notwithstanding any other provision of law, a law enforcement officer of a State, or of a political subdivision of a State, shall be immune, to the same extent as a Federal law enforcement officer, from personal liability arising out of the enforcement of any immigration law. The immunity provided by this subsection shall only apply to an officer of a State, or of a political subdivision of a State, who is acting within the scope of such officer's official duties.

(b)

Notwithstanding any other provision of law, a law enforcement agency of a State, or of a political subdivision of a State, shall be immune from any claim for money damages based on Federal, State, or local civil rights law for an incident arising out of the enforcement of any immigration law, except to the extent that the law enforcement officer of such agency, whose action the claim involves, committed a violation of Federal, State, or local criminal law in the course of enforcing such immigration law.

III

301.

(a)

Section 243 of the Immigration and Nationality Act (8 U.S.C. 1253) is amended by adding at the end the following new subsection:

(e)

(1)

The Secretary of Homeland Security shall establish and maintain a public listing of every alien who is subject to a final order of removal and with respect to whom the Secretary or any Federal court has determined that there is no significant likelihood of removal in the reasonably foreseeable future due to the refusal, or unreasonable delay, of all countries designated by the alien under this section to receive the alien. The public listing shall indicate whether such alien has been released from Federal custody, and the city and State in which such alien resides.

(2)

If 25 or more of the citizens, subjects, or nationals of any foreign state remain on the public listing described in paragraph (1) throughout any month—

(A)

such foreign state shall be deemed to have denied or unreasonably delayed the acceptance of such aliens;

(B)

the Secretary of Homeland Security shall make the notification to the Secretary of State prescribed in subsection (d) of this section; and

(C)

the Secretary of State shall discontinue the issuance of nonimmigrant visas to citizens, subjects, or nationals of such foreign state until such time as the number of aliens on the public listing from such foreign state has—

(i)

declined to fewer than 6; or

(ii)

remained below 25 for at least 30 days.

(b)

Section 243 of the Immigration and Nationality Act (8 U.S.C. 1253) is amended—

(1)

in subsection (a)(1)(D), by inserting or the Secretary of Homeland Security after Attorney General;

(2)

in subsection (c)—

(A)

by striking Attorney General each place it appears and inserting Secretary of Homeland Security; and

(B)

by striking Commissioner and inserting Secretary; and

(3)

in subsection (d)—

(A)

by striking Attorney General each place it appears and inserting Secretary of Homeland Security; and

(B)

by inserting of State after notifies the Secretary.

302.

Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) is amended by striking , except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 237(a)(1)(B).

303.

(a)

Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended—

(1)

in subsection (a)—

(A)

by inserting and at the end of paragraph (1);

(B)

by striking ; and at the end of paragraph (2) and inserting a period; and

(C)

by striking paragraph (3); and

(2)

by striking subsection (e).

(b)

Section 203 of such Act (8 U.S.C. 1153) is amended—

(1)

by striking subsection (c);

(2)

in subsection (d), by striking (a), (b), or (c), and inserting (a) or (b),;

(3)

in subsection (e), by striking paragraph (2) and redesignating paragraph (3) as paragraph (2);

(4)

in subsection (f), by striking (a), (b), or (c) and inserting (a) or (b); and

(5)

in subsection (g), by striking (a), (b), and (c) and inserting (a) and (b).

(c)

Section 204 of such Act (8 U.S.C. 1154) is amended—

(1)

by striking subsection (a)(1)(I); and

(2)

in subsection (e), by striking (a), (b), or (c) and inserting (a) or (b).

(d)

The amendments made by this section shall take effect on October 1, 2006.

304.

Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following new subsection:

(i)

Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, or any court shall not—

(1)

grant or order the grant of adjustment of status to that of an alien lawfully admitted for permanent residence;

(2)

grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws; or

(3)

issue any documentation evidencing or related to such grant by the Attorney General, the Secretary, or any court,

until such background and security checks as the Secretary may in his discretion require have been completed to the satisfaction of the Secretary.

305.

(a)

(1)

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.

(2)

The last sentence of section 318 of such Act (8 U.S.C. 1429) is amended—

(A)

by striking shall be considered by the Attorney General and inserting shall be considered by the Secretary of Homeland Security or any court;

(B)

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 applicants inadmissibility or deportability, or to determine whether the applicants lawful permanent resident status should be rescinded, regardless of when such proceeding was commenced:; and

(C)

by striking upon the Attorney General and inserting upon the Secretary of Homeland Security.

(3)

Section 204(b) of such Act (8 U.S.C. 1154(b)) is amended by adding at the end 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..

(4)

Section 216(e) of such Act (8 U.S.C. 1186a(e)) and section 216A(e) of such Act (8 U.S.C. 1186b(e)) are each amended by inserting before the period at the end of each such section , if the alien has had the conditional basis removed under this section.

(5)

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 in regulations issued by the Secretary), 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.

(6)

Section 310(c) of such Act (8 U.S.C. 1421(c)) is amended—

(A)

by inserting , not later than 120 days after the date of the Secretary's final determination before seek; and

(B)

by striking the second sentence and inserting 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, 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..

(7)

The amendments made by this subsection 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.

(b)

(1)

Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended—

(A)

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;

;

(B)

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

(C)

by striking the first sentence in the undesignated paragraph following paragraph (9) and inserting 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..

(2)

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)

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.

(3)

Section 5504(2) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3741) is amended by striking adding at the end and inserting inserting after paragraph (8) and before the undesignated paragraph at the end.

(4)

(A)

The amendments made by paragraphs (1) and (2) 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; or

(B)

The amendments made by paragraph (3) shall take effect as if included in the enactment of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3638).

306.

(a)

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 new section:

219A.

Nothing in this Act or any other provision of law shall permit the Secretary of Homeland Security, the Attorney General, the Secretary of State, the Secretary of Labor, or any other authorized head of any agency to grant any application, approve any petition, or grant or continue any status or benefit under the immigration laws by, to, or on behalf of—

(1)

any alien described in subparagraphs (A)(i), (A)(iii), (B), or (F) of sections 212(a)(3) or subparagraphs (A)(i), (A)(iii), or (B) of section 237(a)(4);

(2)

any alien with respect to whom a criminal or other investigation or case is pending that is material to the alien’s inadmissibility, deportability, or eligibility for the status or benefit sought; or

(3)

any alien for whom all law enforcement checks, as deemed appropriate by such authorized official, have not been conducted and resolved.

(b)

Section 212(a)(3)(B)(ii)(I) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(ii)(I)) is amended by inserting is able to demonstrate, by clear and convincing evidence, that such spouse or child after who.

307.

Section 245(i) of the Immigration and Nationality Act (8 U.S.C. 1255(i)) is repealed.

308.

(a)

(1)

Section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) is amended—

(A)

in the header, by striking Nazi; and

(B)

by inserting after clause (iii) the following new clause:

(iv)

Any alien who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion is inadmissible.

(2)

Section 212(d)(3)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(3)(A)) by striking and clauses (i) and (ii) of paragraph (3)(E) both places it appears and inserting or 3(E).

(b)

Section 237(a)(4)(D) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(D)) is amended—

(1)

in the header, by striking Nazi; and

(2)

by striking or (iii) and inserting (iii), or (iv).

(c)

Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended—

(1)

in paragraph (8), by striking or;

(2)

in paragraph (9), as added by section 5504(2) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3741), as amended by section 305(b)(3) of this Act, by striking the period at the end and inserting a semicolon and or; and

(3)

inserting after paragraph (9), as added by section 5504(2) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3741), as amended by section 305(b)(3) of this Act, and before the undesignated paragraph at the end the following new paragraph:

(10)

one who at any time has ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.

(d)

Section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended—

(1)

in subsection (a)(1), by striking deportable under section 237(a)(2)(A)(iii) or section 237(a)(4)(B) and inserting removable under section 237(a)(2)(A)(iii), subparagraph (B) or (D) or section 237(a)(4), or section 212(a)(3)(E).; and

(2)

in subsection (b)(1)(C), by striking deportable under section 237(a)(2)(A)(iii) or section 237(a)(4)(B) and inserting removable under section 237(a)(2)(A)(iii), subparagraph (B) or (D) of section 237(a)(4), or section 212(a)(3)(E)..

(e)

Section 277 of such Act (8 U.S.C. 1327) is amended by striking or 212(a)(3) (other than subparagraph (E) thereof) and inserting , section 212(a)(3).

309.

(a)

(1)

Section 641(a)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(a)(4)) is amended—

(A)

by striking Not later than 30 days after the deadline for registering for classes for an academic term and inserting Not later than the program start date (for new students) or the next session start date (for continuing students) of an academic term; and

(B)

by striking shall report to the Immigration and Naturalization Service any failure of the alien to enroll or to commence participation. and inserting shall report to the Secretary of Homeland Security any failure to enroll or to commence participation by the program start date or next session start date, as applicable..

(2)

(A)

Except as provided in subparagraph (B), section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372) is amended by striking Attorney General each place that term appears and inserting Secretary of Homeland Security.

(B)

Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372) is amended—

(i)

in subsections (b), (c)(4)(A), (c)(4)(B), (e)(1), (e)(6), and (g) by inserting Secretary of Homeland Security or the before Attorney General each place that term appears;

(ii)

by striking the heading of section (c)(4)(B) and inserting Secretary of Homeland Security and Attorney General; and

(iii)

in subsection (f), by inserting the Secretary of Homeland Security, before the Attorney General.

(b)

Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372), as amended by subsection (a), is further amended—

(1)

in subsection (c)(1)—

(A)

in subparagraph (G), by striking and at the end;

(B)

in subparagraph (H), by striking the period and inserting a semicolon and and; and

(C)

by adding at the end the following new subparagraph:

(I)

any other information the Secretary of Homeland Security determines is necessary.

; and

(2)

in subsection (c)(2), by adding at the end Approved institutions of higher education or other approved educational institutions shall release information regarding alien students referred to in this section to the Secretary of Homeland Security as part of such information collection program or upon request..

401.

This title may be cited as the Employment Security Act of 2006.

402.

Congress makes the following findings:

(1)

The failure of Federal, State, and local governments to control and sanction the unauthorized employment and unlawful exploitation of illegal alien workers is a primary cause of illegal immigration.

(2)

The use of modern technology not available in 1986, when the Immigration Reform and Control Act of 1986 (Public Law 99–603; 100 Stat. 3359) created the I–9 worker verification system, will enable employers to rapidly and accurately verify the identity and work authorization of their employees and independent contractors.

(3)

The Government and people of the United States share a compelling interest in protection of United States employment authorization, income tax withholding, and social security accounting systems, against unauthorized access by illegal aliens.

(4)

Limited data sharing between the Department of Homeland Security, the Internal Revenue Service, and the Social Security Administration is essential to the integrity of these vital programs, which protect the employment and retirement security of all working Americans.

(5)

The Federal judiciary must be open to private United States citizens, legal foreign workers, and law-abiding enterprises that seek judicial protection against injury to their wages and working conditions due to unlawful employment of illegal alien workers and the United States enterprises that utilize the labor or services provided by illegal aliens, especially where lack of resources constrains enforcement of Federal immigration law by Federal immigration officials.

411.

(a)

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)

(A)

The Secretary of Homeland Security shall establish and administer a verification system, known as the Employment Eligibility Verification System, through which the Secretary—

(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)

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)

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)

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)

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)

(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)

The Commissioner of Social Security and the Secretary of Homeland Security shall update their information in a manner that promotes 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)

Notwithstanding any other provision of law, nothing in this subsection shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, database, or other records assembled under this subsection for any purpose other than the enforcement and administration of the immigration laws, the Social Security Act, or any provision of Federal criminal law.

(I)

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)

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)

Section 274A(d) (8 U.S.C. 1324a(d)) is repealed.

(c)

The amendments made by this section shall take effect 2 years after the date of the enactment of this Act.

412.

(a)

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)

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)

(I)

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)

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)

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)

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.;

(5)

by amending paragraph (3) of subsection (b) to read as follows:

(3)

(A)

After completion of such form in accordance with paragraphs (1) and (2), the person or entity shall—

(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)

not commence recruitment or referral of the individual until the person or entity receives verification under subparagraph (B)(i) or (B)(iii).

(B)

(i)

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)

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)

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)

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)

(I)

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)

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)

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).

;

(6)

by amending paragraph (4) of subsection (b) to read as follows:

(4)

(A)

Notwithstanding any other provision of law, a person or entity shall retain a copy of each document presented by an individual to the individual or entity pursuant to this subsection. Such copy may only be used (except as otherwise permitted under law) for the purposes of complying with the requirements of this subsection and shall be maintained for a time period to be determined by the Secretary of Homeland Security.

(B)

A person or entity shall maintain records of correspondence from the Commissioner of Social Security regarding name and number mismatches or no-matches and the steps taken to resolve such mismatches or no-matches. The employer shall maintain such records for a time period to be determined by the Secretary.

(C)

The Secretary may, by regulation, require additional documents to be copied and maintained.

; and

(7)

by amending paragraph (5) of subsection (b) to read as follows:

(5)

A form designated by the Secretary to be used for compliance with this subsection, and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter or of title 18, United States Code.

(b)

Section 287(e) of the Immigration and Nationality Act (8 U.S.C. 1357(e)) is amended by adding at the end the following: An investigation authorized pursuant to subsections (b)(7) or (e) of section 274A is not a warrantless entry..

(c)

The amendments made by this section shall take effect 2 years after the date of the enactment of this Act.

413.

(a)

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)

Section 274A(b) of such Act (8 U.S.C. 1324a(b)), as amended by section 411(a), is amended by adding at the end the following new paragraph:

(8)

(A)

Beginning on the date that is 2 years after the date of the enactment of the Employment Security Act of 2006 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)

(i)

A person or entity described in clause (ii) shall 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 3 years after the date of the enactment of the Employment Security Act of 2006.

(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 a person or entity described in clause (ii) shall 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 that have not been previously subject to an inquiry by the person or entity by the date 6 years after the date of the enactment of the Employment Security Act of 2006.

414.

Paragraph 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)) is amended—

(1)

by striking imposing, and inserting a dash and (A) imposing;

(2)

by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following:

(B)

Requiring as a condition of conducting, continuing, or expanding a business that a business entity—

(i)

provide, build, fund, or maintain a shelter, structure, or designated area for use by day laborers at or near its place of business; or

(ii)

take other steps that facilitate the employment of day laborers by others.

415.

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 2 years after the date of the enactment of the Employment Security Act of 2006.

416.

Section 274B(a) of the Immigration and Nationality Act (8 U.S.C. 1324b(a)) is amended by adding at the end the following:

(7)

Notwithstanding any other provision of law, the rights protected by this subsection include the right of any individual to report a violation or suspected violation of any immigration law to the Secretary of Homeland Security or a law enforcement agency.

417.

(a)

Section 274A(e)(4) of the Immigration and Nationality Act (8 U.S.C. 1324a(e)(4)) is amended to read:

(4)

(A)

Any person or entity that violates subsection (a)(1)(A) shall—

(i)

in the case of a first offense, be fined $10,000 for each unauthorized alien;

(ii)

(in the case of a second offense, be fined $50,000 for each unauthorized alien; and

(iii)

in the case of a third or subsequent offense, be fined in accordance with title 18, United States Code, imprisoned not less than 1 year and not more than 3 years, or both.

(B)

Any person or entity that violates subsection (a)(2) shall be fined in accordance of title 18, United States Code, imprisoned not less than 1 year and not more than 3 years, or both.

(b)

Section 274A(e)(5) of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended to read:

(5)

Any person or entity that violates subsection (a)(1)(B) shall—

(A)

in the case of a first offense, be fined $1,000 for each violation;

(B)

in the case of a second violation, be fined $5,000 for each violation; and

(C)

in the case of a third and subsequent violation, be fined $10,000 for each such violation.

(c)

Section 274A(e) of the Immigration and Nationality Act (8 U.S.C. 1324a(e)) is amended by adding at the end the following new paragraph:

(10)

(A)

(i)

If the Secretary of Homeland Secretary determines that a person or entity that employs an alien is a repeat violator of this section or is convicted of a crime under this section, such person or entity shall be debarred from the receipt of a Federal contract, grant, or cooperative agreement for a period of 2 years. The Secretary of Homeland Security or the Attorney General shall advise the Administrator of General Services of such a debarment, and the Administrator of General Services shall list the employer on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs for a 2-year period.

(ii)

The Administrator of General Services, in consultation with the Secretary of Homeland Security and Attorney General, may waive the application of this subparagraph or may limit the duration or scope of the debarment imposed under it.

(iii)

Any proposed debarment that is predicated on an administrative determination of liability for civil penalty by the Secretary of Homeland Security or the Attorney General may not be reviewable in any debarment proceeding. The decision of whether to debar or take alternation may not be reviewed by any court.

(B)

(i)

If the Secretary of Homeland Security determines that a person or entity that employs an alien and holds a Federal contract, grant, or cooperative agreement is a repeat violator of this section or is convicted of a crime under this section, such person or entity shall be debarred from the receipt of a Federal contract, grant, or cooperative agreement for a period of 2 years. Prior to debarring the employer, the Secretary of Homeland Security, in cooperation with the Administrator of General Services, shall advise the head of each agency holding such a contract, grant, or cooperative agreement with person or entity of the Government’s intention to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 2 years.

(ii)

After consideration of the views of the head of each such agency, the Secretary of Homeland Security may, in lieu of debarring the employer from the receipt of new a Federal contract, grant, or cooperative agreement for a period of 2 years, waive application of this subparagraph, limit the duration or scope of the debarment, or may refer to an appropriate lead agency the decision of whether to debar the employer, for what duration, and under what scope in accordance with the procedures and standards prescribed by the Federal Acquisition Regulation.

(iii)

(C)

Indictments for violations of this section or adequate evidence of actions that could form the basis for debarment under this paragraph shall be considered a cause for suspension under the procedures and standards for suspension prescribed by the Federal Acquisition Regulation.

(D)

The provisions of this paragraph shall apply to any Federal contract, grant, or cooperative agreement that is effective on or after the date of the enactment of the Employment Security Act of 2006.

(d)

Section 274A(f)(1) of the Immigration and Nationality Act (8 U.S.C. 1324a(f)(1)) is amended to read as follows:

(1)

Any person or entity 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 3 years and not more than 5 years, or both, notwithstanding the provisions of any other Federal law relating to fine levels. The amount of the gross proceeds of such violation, and any property traceable to such proceeds, shall be seized and subject to forfeiture under title 18, United States Code.

(e)

Subsections (b)(2) and (f)(2) of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) are amended by striking Attorney General each place it appears and inserting Secretary of Homeland Security.

421.

The Commissioner of Social Security is authorized to perform activities with respect to carrying out the Commissioner’s responsibilities in this title or the amendments made by this title, however in no case shall funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund be used to carry out such responsibilities.

422.

The Commissioner of Social Security shall promptly notify the Secretary of Homeland Security of the failure of any individual to provide, upon any request of the Commissioner made pursuant to section 205(c)(2) of the Social Security Act (42 U.S.C. 405(c)(2)), evidence necessary, under such section to—

(1)

establish the age, citizenship, immigration or work eligibility status of the individual;

(2)

establish such individual’s true identity; or

(3)

determine which (if any) social security account number has previously been assigned to such individual.

423.

Section 205(c)(2) of the Social Security Act (42 U.S.C. 405(c)(2)) is amended by adding at the end the following new subparagraph:

(I)

(i)

Access to any information contained in the Employment Eligibility Verification System established section 274A(b)(7) of the Immigration and Nationality Act, shall be prohibited for any purpose other than the administration or enforcement of Federal immigration, social security, and tax laws, any provision of title 18, United States Code, or as otherwise authorized by Federal law.

(ii)

No person or entity may use the information in such Employment Eligibility Verification System for any purpose other than as permitted by Federal law.

(iii)

Whoever knowingly uses, discloses, publishes, or permits the unauthorized use of information in such Employment Eligibility Verification System in violation of clause (i) or (ii) shall be fined not more than $10,000 per individual injured by such violation. The Commissioner of Social Security shall establish procedure to ensure that 60 percent of any fine imposed under this clause is awarded to the individual injured by such violation.

424.

Section 205(c)(2)(H) of the Social Security Act (42 U.S.C. 405(c)(2)(H)) is amended to read as follows:

(H)

The Commissioner of Social Security shall share with the Secretary of the Treasury—

(i)

the information obtained by the Commissioner pursuant to the second sentence of subparagraph (B)(ii) and to subparagraph (C)(ii) for the purpose of administering those sections of the Internal Revenue Code of 1986 that grant tax benefits based on support or residence of children; and

(ii)

information relating to the detection of wages or income from self-employment of unauthorized aliens (as defined by section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a)), or the investigation of false statements or fraud by such persons incident to the administration of immigration, social security, or tax laws of the United States.

Information disclosed under this subparagraph shall be solely for the use of the officers and employees to whom such information is disclosed in such response or investigation.

425.

(a)

Section 205(c)(2) of the Social Security Act (42 U.S.C. 405(c)(2)), as amended by section 423, is amended by adding at the end the following new subparagraph:

(J)

Upon the issuance of a social security account number under subparagraph (B) to any individual or the issuance of a Social Security card under subparagraph (G) to any individual, the Commissioner of social security shall transmit to the Secretary of Homeland Security such information received by the Commissioner in the individual's application for such number or such card as the Secretary of Homeland Security determines necessary and appropriate for administration of the immigration laws of the United States.

(b)

(1)

Section 264(f) of the Immigration and Nationality Act (8 U.S.C. 1304(f)) is amended to read as follows:

(f)

Notwithstanding any other provision of law (including section 6103 of title 26, United States Code), the Secretary of Homeland Security, Secretary of Labor and the Attorney General are authorized to require any individual to provide the individual's own social security account number for purposes of inclusion in any record of the individual maintained by any of any such Secretary or the Attorney General, or for inclusion on any application, document, or form provided under or required by the immigration laws.

(2)

Section 290(c) of the Immigration and Nationality Act (8 U.S.C. 1360(c)) is amended by striking paragraph (2) and inserting the following new paragraphs:

(2)

Notwithstanding any other provision of law (including section 6103 of title 26, United States Code) if earnings are reported on or after January 1, 1997, to the Commissioner of Social Security on a social security account number issued to an alien who is not authorized to work in the United States, the Commissioner shall provide the Secretary of Homeland Security with information regarding the name, date of birth, and address of the alien, the name and address of the person reporting the earnings, and the amount of the earnings. The information shall be provided in an electronic form agreed upon by the Commissioner and the Secretary.

(3)

Notwithstanding any other provision of law (including section 6103 of title 26, United States Code), the Commissioner of Social Security shall provide the Secretary of Homeland Security information regarding the name, date of birth, and address of an individual, as well as the name and address of the person reporting the earnings, in any case where a social security account number does not match the name in the Social Security Administration record. The information shall be provided in an electronic form agreed upon by the Commissioner and the Secretary for the sole purpose of enforcing the immigration laws. The Secretary, in consultation with the Commissioner, may limit or modify these requirements as appropriate to identify those cases posing the highest possibility of fraudulent use of social security account numbers related to violation of the immigration laws.

(4)

Notwithstanding any other provision of law (including section 6103 of title 26, United States Code), the Commissioner of Social Security shall provide the Secretary of Homeland Security information regarding the name, date of birth, and address of an individual, as well as the name and address of the person reporting the earnings, in any case where the individual has more than one person reporting earnings for the individual during a single tax year and where a social security number was used with multiple names. The information shall be provided in an electronic form agreed upon by the Commissioner and the Secretary for the sole purpose of enforcing the immigration laws. The Secretary, in consultation with the Commissioner, may limit or modify these requirements as appropriate to identify those cases posing the highest possibility of fraudulent use of social security account numbers related to violation of the immigration laws.

(5)

(A)

The Commissioner of Social Security shall perform, at the request of the Secretary of Homeland Security, any search or manipulation of records held by the Commissioner, so long as the Secretary certifies that the purpose of the search or manipulation is to obtain information likely to assist in identifying individuals (and their employers) who—

(i)

are using false names or social security numbers; who are sharing among multiple individuals a single valid name and social security number;

(ii)

are using the social security number of persons who are deceased, too young to work or not authorized to work; or

(iii)

are otherwise engaged in a violation of the immigration laws.

(B)

The Commissioner shall provide the results of such search or manipulation to the Secretary, notwithstanding any other provision of law (including section 6103 of title 26, United States Code). The Secretary shall transfer to the Commissioner the funds necessary to cover the additional cost directly incurred by the Commissioner in carrying out the searches or manipulations reported by the Secretary.

431.

(a)

Section 6103(i) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

(9)

(A)

Upon receipt by the Secretary of the Treasury of a written request, by the Secretary of Homeland Security or Commissioner of Social Security, the Secretary of the Treasury shall disclose return information to officers and employees of the Department of Homeland Security and the Social Security Administration who are personally and directly engaged in—

(i)

preparation for any judicial or administrative civil or criminal enforcement proceeding against an alien under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), other than the adjudication of any application for a change in immigration status or other benefit by such alien, or

(ii)

preparation for a civil or criminal enforcement proceeding against a citizen or national of the United States under section 274, 274A, or 274C of the Immigration and Nationality Act (8 U.S.C. 1324, 1324a, or 1324c), or

(iii)

any investigation which may result in the proceedings enumerated in clauses (i) and (ii) above.

(B)

(i)

Information disclosed under this paragraph shall be solely for the use of the officers and employees to whom such information is disclosed in such response or investigation.

(ii)

Should the proceeding for which such information has been disclosed not commence within 3 years after the date on which the information has been disclosed by the Secretary, the information shall be returned to the Secretary in its entirety, and shall not be retained in any form by the requestor, unless the taxpayer is notified in writing as to the information that has been retained.

(b)

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended by adding at the end the following new subsection:

(i)

(1)

In this subsection, the term no-match notice means a written notice from the Commissioner of Social Security to an employer reporting earnings on a Form W-2 that an employee name or corresponding social security account number fail to match records maintained by the Commissioner.

(2)

(A)

Notwithstanding any other provision of law (including section 6103 of title 26, United States Code), the Commissioner shall provide the Secretary of Homeland Security with information relating to employers who have received no-match notices and, upon request, with such additional information as the Secretary certifies is necessary to administer or enforce the immigration laws.

(B)

The information shall be provided in an electronic form agreed upon by the Commissioner and the Secretary.

(C)

A no-match notice received by the Secretary from the Commissioner may be used as evidence in any civil or criminal proceeding.

(3)

(A)

The Secretary, in consultation with the Commissioner, is authorized to establish by regulation requirements for verifying the identity and work authorization of an employee who is the subject of a no-match notice.

(B)

The Secretary is authorized to establish by regulation penalties for failure to comply with this subsection.

(C)

This authority in this subsection is provided in aid of the Secretary’s authority to administer and enforce the immigration laws, and nothing in this subsection shall be construed to authorize the Secretary to establish any regulation regarding the administration or enforcement of laws otherwise relating to taxation or the Social Security system.

432.

Section 7701(b)(1) of the Internal Revenue Code of 1986 is amended by adding at the end the following new subparagraph:

(C)

(i)

An alien who is present in the United States while working in any capacity in violation of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) during any portion of a calendar year shall be treated as an unauthorized alien with respect to such calendar year.

(ii)

Such an unauthorized alien shall not be eligible for nonresident alien tax status during such calendar year.

(iii)

The Secretary shall provide the Secretary of Homeland Security and the Commissioner of Social Security with information sufficient to establish the identity and last known address of any unauthorized alien identified by the Secretary.

433.

Chapter 75 of the Internal Revenue Code of 1986 is amended by inserting after section 7217 the following:

7218.

(a)

Resident aliens, described in section 7701(b)(1)(A), may use the taxpayer identification number (TIN) assigned to them for any lawful purpose. Non-resident aliens may only use the TIN assigned to them for the administration of the tax laws, or for other purposes required by Federal regulation.

(b)

Any person who willfully violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $2,000 or imprisonment for not more than 1 year, or both.

434.

(a)

Section 162(c) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

(4)

(A)

No deduction shall be allowed under subsection (a) for any recruiting expense or wage paid to or on behalf of an unauthorized alien, as defined under section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3)), unless the alien’s eligibility for employment was first verified through the Interim Work Eligibility Verification Program carried out pursuant to subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) or the Work Eligibility Verification System, carried out under section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a(a)).

(B)

For purposes of this paragraph:

(i)

The term ‘recruiting expense’ means any payment made to a third party to identify, recruit, or prepare an individual for employment.

(ii)

The term ‘wages’ means all remuneration for employment, including the cash value of all remuneration (to include benefits) paid in any medium other than cash.

(b)

Subsection (c) of section 6501 of such Code (relating to exceptions) is amended by adding at the end the following new paragraph:

(11)

In the case of a return of tax on which a deduction is shown in violation of section 162(c)(4), any tax under chapter 1 may be assessed, or a proceeding for the collection of such tax may be begun without assessment, at any time during the 7-year period beginning on the date the return was filed.

(c)

The Commissioner of Social Security shall make available to the Commissioner of Internal Revenue any information related to the investigation and enforcement of section 162(c)(4) of the Internal Revenue Code of 1986, including any no-match letter and any information in the suspense earnings file.

(d)

The amendments made by subsections (a) and (b) shall apply to taxable years beginning with the first taxable year that begins at least 365 days after enactment of this Act.

441.

(a)

(1)

Subject to paragraph (3), for purposes of personal identification, no agency, commission, entity, or agent of the executive or legislative branches of the Federal Government may accept, acknowledge, recognize, or rely on any identification document issued by the government of a foreign country, unless otherwise mandated by Federal law.

(2)

In this section, the term agent shall include the following:

(A)

A Federal contractor or grantee.

(B)

An institution or entity exempted from Federal income taxation under the Internal Revenue Code of 1986.

(C)

A financial institution required to ask for identification under section 5318(l) of title 31, United States Code.

(3)

(A)

An individual who is not a citizen or national of the United States may present for purposes of personal identification an official identification document issued by the government of a foreign country or other foreign identification document recognized pursuant to a treaty entered into by the United States, if—

(i)

such individual simultaneously presents valid verifiable documentation of lawful presence in the United States issued by the appropriate agency of the Federal Government;

(ii)

reporting a violation of law or seeking government assistance in an emergency;

(iii)

the document presented is a passport issued to a citizen or national of a country that participates in the visa waiver program established under section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) by the government of such country; or

(iv)

such use is expressly permitted another provision of Federal law.

(B)

The provisions of paragraph (1) shall not apply to—

(i)

inspections of alien applicants for admission to the United States; or

(ii)

verification of personal identification of persons outside the United States.

(4)

The Secretary of Homeland Security shall issue and maintain an updated public listing, compiled in consultation with the Secretary of State, and including sample facsimiles, of all acceptable Federal documents that satisfy the requirements of paragraph (3)(A).

(b)

Section 274C(a) of the Immigration and Nationality Act (8 U.S.C. 1324c(a)) is amended—

(1)

in paragraph (5), by striking or at the end;

(2)

in paragraph (6), by striking the period at the end and inserting a comma and or; and

(3)

by inserting after paragraph (6) the following new paragraph:

(7)

to use to establish personal identity, before any agent of the Federal Government, or before any agency of the Federal Government or of a State or any political subdivision therein, a travel or identification document issued by a foreign government that is not accepted by the Secretary of Homeland Security to establish personal identity for purposes of admission to the United States at a port of entry, except—

(A)

in the case of a person who is not a citizen of the United States—

(i)

the person simultaneously presents valid verifiable documentation of lawful presence in the United States issued by an agency of the Federal Government;

(ii)

the person is reporting a violation of law or seeking government assistance in an emergency; or

(iii)

such use is expressly permitted by Federal law.

442.

(a)

Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1732) is amended—

(1)

in the heading, by striking entry and exit documents and inserting travel, entry, and evidence of status documents;

(2)

in subsection (b)(1)—

(A)

by striking Not later than October 26, 2004, the Attorney General and inserting The Secretary of Homeland Security; and

(B)

by striking visas and each place it appears and inserting visas, evidence of status, and;

(3)

by striking subsection (d) and inserting the following:

(d)

Not later than October 26, 2007, every document, other than an interim document, issued by the Secretary of Homeland Security, which may be used as evidence of immigrant, nonimmigrant, parole, asylee, or refugee status, shall be machine-readable, tamper-resistant, and incorporate a biometric identifier to allow the Secretary of Homeland Security to electronically verify the identity and status of the alien.

(e)

(1)

There are authorized to be appropriated such sums as may be necessary to carry out this section, including reimbursements to international and domestic standards organizations.

(2)

During any fiscal year for which appropriations sufficient to issue documents described in subsection (d) are not made pursuant to law, the Secretary of Homeland Security is authorized to implement and collect a fee sufficient to cover the direct cost of issuance of such document from the alien to whom the document will be issued.

(3)

The fee described in paragraph (2) may not be levied against nationals of a foreign country if the Secretary of Homeland has determined that the total estimated population of such country who are unlawfully present in the United States does not exceed 3,000 aliens.

(b)

The table of contents in section 1(b) of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Public Law 107–173; 116 Stat. 543) is amended by striking the item relating to section 303 and inserting the following:

Sec. 303. Machine-readable, tamper-resistant travel, entry, and evidence of status documents.

451.

Section 210(a)(19) of the Social Security Act (42 U.S.C. 410(a)(19)) is amended by inserting: (except that any such service shall not include work performed by an alien while employed in the United States for any period during which the alien is not authorized to be employed) after may be.

452.

Section 211(c) of the Social Security Act (42 U.S.C. 411(c)) is amended by inserting after paragraph (6) the following new paragraph:

(7)

The performance of a function or service in the United States by an alien during any period for which the alien is not authorized to perform such function or service in the United States.

453.

The amendments made by this subtitle shall apply with respect to wages earned, and self-employment income derived on or after the date of the enactment of this Act. Notwithstanding section 215(f)(1) of the Social Security Act (42 U.S.C. 415(f)(1)), as soon as practicable after the date of the enactment of this Act, the Commissioner of Social Security shall recompute all primary insurance amounts to the extent necessary to carry out such amendments. Such amendments shall affect benefits payable only for months after the date of the enactment of this Act.

461.

Except as otherwise specially provided in this Act, the provisions of this title shall take effect not later than 45 days after the date of the enactment of this Act.

462.

In addition to amounts otherwise authorized to be appropriated, there are authorized to be appropriated such sums as may be necessary for each of fiscal years 2007 through 2011 to carry out this title.

501.

(a)

Section 274 of the Immigration and Nationality Act (8 U.S.C. 1324) is amended to read as follows:

274.

(a)

(1)

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)

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)

There is extraterritorial Federal jurisdiction over the offenses described in this subsection.

(b)

(1)

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)

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)

(1)

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)

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)

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)

(1)

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)

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)

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)

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.

502.

(a)

(1)

Chapter 27 of title 18, United States Code, is amended by adding at the end a new section as follows:

554.

(a)

A person shall be punished as described in subsection (b) if such person—

(1)

attempts to elude or eludes customs, immigration, or agriculture inspection or fails to stop at the command of an officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States at a port of entry or customs or immigration checkpoint; or

(2)

intentionally violates an arrival, reporting, entry, or clearance requirement of—

(A)

section 107 of the Federal Plant Pest Act (7 U.S.C. 105ff);

(B)

section 10 of the Act of August 20, 1912 (7 U.S.C. 164(a));

(C)

section 7 of the Federal Noxious Weed Act of 1974 (7 U.S.C. 2806);

(D)

the Agriculture and Food Act of 1981 (Public Law 97–98; 95 Stat. 1213);

(E)

section 431, 433, 434, or 459 of the Tariff Act of 1930 (19 U.S.C. 1431, 1433, 1434, and 1459);

(F)

section 10 of the Act of August 20, 1890 (21 U.S.C. 105);

(G)

section 2 of the Act of February 2, 1903 (21 U.S.C. 111);

(H)

section 4197 of the Revised Statutes (46 U.S.C. App. 91); or

(I)

the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(b)

A person who commits an offense described in subsection (a) shall be—

(1)

fined under this title;

(2)

(A)

imprisoned for not more than 5 years, or both;

(B)

imprisoned for not more than 10 years, or both, if in commission of this violation, attempts to inflict or inflicts bodily injury (as defined in section 1365(g) of this title); or

(C)

imprisoned for any term of years or for life, or both, if death results, and may be sentenced to death; or

(3)

both fined and imprisoned under this subsection.

(c)

If 2 or more persons conspire to commit an offense described in subsection (a), and 1 or more of such persons do any act to effect the object of the conspiracy, each shall be punishable as a principal, except that the sentence of death may not be imposed.

(d)

For the purposes of seizure and forfeiture under applicable law, in the case of use of a vehicle or other conveyance in the commission of this offense, or in the case of disregarding or disobeying the lawful authority or command of any officer or employee of the United States under section 111(b) of this title, such conduct shall constitute prima facie evidence of smuggling aliens or merchandise.

(2)

The table of sections for chapter 27 of title 18, United States Code, is amended by inserting at the end:

554. Evasion of inspection or during violation of arrival, reporting, entry, or clearance requirements.

(b)

Section 111 of title 18, United States Code, is amended by inserting after subsection (b) the following:

(c)

Whoever willfully disregards or disobeys the lawful authority or commend of any officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States while engaged in, or on account of, the performance of official duties shall be fined under this title or imprisoned for not more than 5 years, or both.

503.

(a)

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;

(3)

by amending subsection (c) to read as follows:

(c)

(1)

Whoever—

(A)

knowingly enters into a marriage for the purpose of evading any provision of the immigration laws; or

(B)

knowingly misrepresents the existence or circumstances of a marriage—

(i)

in an application or document arising under or authorized by the immigration laws of the United States or the regulations prescribed thereunder, or

(ii)

during any immigration proceeding conducted by an administrative adjudicator (including an immigration officer or examiner, a consular officer, an immigration judge, or a member of the Board of Immigration Appeals);

shall be fined under title 18, United States Code, or imprisoned not more than 10 years, or both.

(2)

Whoever—

(A)

knowingly enters into two or more marriages for the purpose of evading any provision of the immigration laws; or

(B)

knowingly arranges, supports, or facilitates two or more marriages designed or intended to evade any provision of the immigration laws;

shall be fined under title 18, United States Code, imprisoned not less than 2 years nor more than 20 years, or both.

(3)

An offense under this subsection continues until the fraudulent nature of the marriage or marriages is discovered by an immigration officer.

(4)

For purposes of this section, the term proceeding includes an adjudication, interview, hearing, or review.

(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;

(B)

whose violation was subsequent to conviction for a felony for which the alien received a sentence of 30 months or more, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both; or

(C)

whose violation was subsequent to conviction for a felony for which the alien received a sentence of 60 months or more, shall be fined under title 18, United States Code, imprisoned not more than 20 years, or both.

(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), (B), or (C) 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 a 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.

(b)

Nothing in the amendment made by subsection (a) may be construed to limit the authority of any State or political subdivision therein to enforce criminal trespass laws against aliens whom a law enforcement agency has verified to be present in the United States in violation of this Act or the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

504.

(a)

Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at the end the following new subsection:

(w)

The provisions of section 2412, title 28, United States Code, shall not apply to civil actions arising under or related to the immigration laws, including any action under—

(1)

any provision of title 5, United States Code;

(2)

any application for a writ of habeas corpus under section 2241 of title 28, United States Code, or any other habeas corpus provision; or

(3)

any action under section 1361 or 1651 of title 28, United States Code, that involves or is related to the enforcement or administration of the immigration laws with respect to any person or entity.

(b)

(1)

Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356), as amended by subsection (a), is further amended by adding at the end the following new subsection:

(x)

(1)

There is established in the general fund of the Treasury, a separate account which shall be known as the Employer Compliance Fund (referred to in this subsection as the Fund)

(2)

There shall be deposited as offsetting receipts into the Fund all monetary penalties collected by the Secretary of Homeland Security under section 274A.

(3)

Amounts deposited into the Fund shall be used by the Secretary of Homeland Security for the purposes of enhancing employer compliance with section 274A, compliance training, and outreach.

(4)

Amounts deposited into the Fund shall remain available until expended and shall be refunded out of the Fund by the Secretary of the Treasury, at least on a quarterly basis, to the Secretary of Homeland Security.

(2)

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a), as amended by section 431(b), is further amended by adding at the end the following new subsection:

(j)

Amounts collected under this section shall be deposited by the Secretary of Homeland Security into the Employer Compliance Fund established under section 286(x).

505.

(a)

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,; and

(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)—

(A)

by inserting (as in effect before the effective date of the amendments made by section 305 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–597)), or removed under section 241(a)(4), after 242(h)(2);

(B)

by striking (unless the Attorney General has expressly consented to such alien’s reentry);

(C)

by inserting or removal after time of deportation; and

(D)

by inserting or removed after reentry of deported;

(5)

in subsection (d)—

(A)

in the matter before paragraph (1), by striking deportation order and inserting deportation or removal order; and

(B)

in paragraph (2), by inserting or removal after deportation; and

(6)

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.

(b)

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to criminal proceedings involving aliens who enter, attempt to enter, or are found in the United States, after such date.

506.

(a)

Section 274C(d)(3) of the Immigration and Nationality Act (8 U.S.C. 1324c(d)(3)) is amended—

(1)

in subparagraph (A), by striking $250 and not more than $2,000 and inserting $500 and not more than $4,000; and

(2)

in subparagraph (B), by striking $2,000 and not more than $5,000 and inserting $4,000 and not more than $10,000.

(b)

Chapter 47 of title 18, United States Code, is amended—

(1)

in section 1015, by striking not more than 5 years and inserting not more than 10 years; and

(2)

in section 1028(b)—

(A)

in paragraph (1), by striking 15 years and inserting 20 years;

(B)

in paragraph (2), by striking 5 years and inserting 6 years;

(C)

in paragraph (3), by striking 20 years and inserting 25 years; and

(D)

in paragraph (6), by striking one year and inserting 2 years.

(c)

Section 1546 of title 18, United States Code, is amended—

(1)

in subsection (a)—

(A)

by striking not more than 25 years and inserting not less than 25 years

(B)

by inserting and if the terrorism offense resulted in the death of any person, shall be punished by death or imprisoned for life, after section 2331 of this title)),;

(C)

by striking 20 years and inserting imprisoned not more than 40 years;

(D)

by striking 10 years and inserting imprisoned not more than 20 years; and

(E)

by striking 15 years and inserting imprisoned not more than 25 years; and

(2)

in subsection (b), by striking 5 years and inserting 10 years.

(d)

(1)

Title 18, United States Code, is amended by inserting after chapter 51 the following:

Sec.

1131. Enhanced penalties for certain crimes committed by illegal aliens.

1131.

(a)

Any alien unlawfully present in the United States, who commits, or conspires or attempts to commit, a crime of violence or a drug trafficking crime (as such terms are defined in section 924), shall be fined under this title and sentenced to not less than 5 years in prison.

(b)

If an alien who violates subsection (a) was previously ordered removed under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) on the grounds of having committed a crime, the alien shall be sentenced to not less than 15 years in prison.

(c)

A sentence of imprisonment imposed under this section shall run consecutively to any other sentence of imprisonment imposed for any other crime.

(2)

The table of chapters at the beginning of part I of title 18, United States Code, is amended by inserting after the item relating to chapter 51 the following:

“52.Illegal aliens1131”.

507.

(a)

Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:

(J)

(i)

Any alien is inadmissible if—

(I)

the alien has been removed under section 237(a)(2)(F); or

(II)

the consular officer or the Secretary of Homeland Security knows, or has reasonable ground to believe that the alien—

(aa)

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

(bb)

is a member of a criminal street gang designated under section 219A.

(ii)

In this subparagraph:

(I)

The term criminal street gang means an ongoing group, club organization or informal association of 5 or more persons who engage, or have engaged within the past 5 years in a continuing series of 3 or more gang crimes (1 of which is a crime of violence, as defined in section 16 of title 18, United States Code).

(II)

The term gang crime means conduct constituting any Federal or State crime, punishable by imprisonment for 1 year or more, in any of the following categories:

(aa)

A crime of violence (as defined in section 16 of title 18, United States Code).

(bb)

A crime involving obstruction of justice, tampering with or retaliating against a witness, victim, or informant, or burglary.

(cc)

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)).

(dd)

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).

(ee)

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)

Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:

(F)

(i)

An alien is deportable if the alien—

(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)

For purposes of this subparagraph, the terms criminal street gang and gang crime have the meaning given such terms in section 212(a)(2)(J)(ii).

(c)

(1)

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:

219A.

(a)

(1)

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)(J)(ii)(I).

(2)

(A)

(i)

Seven days before making a designation under this subsection, the Attorney General shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees, 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 therefore.

(ii)

The Attorney General shall publish the designation in the Federal Register 7 days after providing the notification under clause (i).

(B)

A designation under this subsection shall take effect upon publication under subparagraph (A)(ii).

(3)

In making a designation under this subsection, the Attorney General shall create an administrative record.

(4)

(A)

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)

(i)

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)

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)

Any criminal street gang that submits a petition for revocation under this subparagraph shall 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)

(I)

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)

A determination made by the Attorney General under this clause shall be published in the Federal Register.

(III)

Any revocation by the Attorney General shall be made in accordance with paragraph (6).

(C)

(i)

If in a 4-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)

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)

The Attorney General shall publish any determination made pursuant to this subparagraph in the Federal Register.

(5)

(A)

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—

(i)

the circumstances that were the basis for the designation have changed in such a manner as to warrant revocation; or

(ii)

the national security of the United States warrants a revocation.

(B)

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.

(6)

The revocation of a designation under paragraph (5) shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation.

(7)

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)

(1)

Not later than 60 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)

Review under this subsection shall be based solely upon the administrative record.

(3)

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)

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)

As used in this section, the term relevant committees means the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.

(2)

The table of contents for the Immigration and Nationality 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.

508.

(a)

Section 236(c)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1226(c)(1)(D)) is amended—

(1)

by inserting or 212(a)(2)(J) after 212(a)(3)(B); and

(2)

by inserting or 237(a)(2)(F) before 237(a)(4)(B).

(b)

Not later than March 1 2007, and annually thereafter, the Secretary of Homeland Security, after consultation with the appropriate Federal agencies, shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the number of aliens detained under the amendments made by subsection (a).

509.

(a)

Section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(B)) is amended, in the matter preceding clause (i), by inserting who is described in section 212(a)(2)(J)(i) or section 237(a)(2)(F)(i) or who is after to an alien.

(b)

Section 208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A)) is amended—

(1)

in clause (v), by striking or at the end;

(2)

by redesignating clause (vi) as clause (vii); and

(3)

by inserting after clause (v) the following:

(vi)

the alien is described in section 212(a)(2)(J)(i) or section 237(a)(2)(F)(i) (relating to participation in criminal street gangs); or

(c)

Section 244(c)(2) of such Act (8 U.S.C. 1254a(c)(2)) is amended by adding at the end the following:

(C)

There shall be no judicial review of any finding under subparagraph (B) that an alien is described in section 208(b)(2)(A)(vi).

510.

(a)

(1)

Section 208(a) of the Social Security Act (42 U.S.C. 408(a)) is amended—

(A)

in paragraph (7), by adding after subparagraph (C) the following:

(D)

with intent to deceive, discloses, sells, or transfers his own social security account number, assigned to him by the Commissioner of Social Security (in the exercise of the Commissioner’s authority under section 205(c)(2) to establish and maintain records), to any person; or

;

(B)

in paragraph (8), by adding or at the end; and

(C)

by inserting after paragraph (8) the following:

(9)

without lawful authority, offers, for a fee, to acquire for any individual, or to assist in acquiring for any individual, an additional social security account number or a number that purports to be a social security account number;

(10)

willfully acts or fails to act so as to cause a violation of section 205(c)(2)(C)(xii);

(11)

being an officer or employee of any executive, legislative, or judicial agency or instrumentality of the Federal Government or of a State or political subdivision thereof, or a person acting as an agent of such an agency or instrumentality (or an officer or employee thereof or a person acting as an agent thereof) in possession of any individual’s social security account number, willfully acts or fails to act so as to cause a violation of clause (vi)(II), (x), (xi), (xii), (xiii), or (xiv) of section 205(c)(2)(C); or

(12)

being a trustee appointed in a case under title 11, United States Code (or an officer or employee thereof or a person acting as an agent thereof), willfully acts or fails to act so as to cause a violation of clause (x) or (xi) of section 205(c)(2)(C).

(2)

Paragraphs (7)(D) and (9) of section 208(a) of the Social Security Act, as added by paragraph (1), shall apply with respect to each violation occurring after the date of the enactment of this Act. Paragraphs (10), (11), and (12) of section 208(a) of such Act, as added by paragraph (1)(C), shall apply with respect to each violation occurring on or after the effective date of this Act.

(b)

The Commissioner of Internal Revenue and the Commissioner of Social Security shall submit to Congress an annual report on efforts taken to identify and enforce penalties against employers that file incorrect information returns.

511.

(a)

Section 212 (a)(3)(B)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(ii)) is amended—

(1)

by striking Subclause (VII) of clause (i) and inserting Subclause (IX) of clause (i); and

(2)

in subclause (II), by striking consular officer or Attorney General and inserting consular officer, Attorney General, or Secretary of Homeland Security.

(b)

Section 212(a)(6)(C)(ii)(I) (8 U.S.C. 1182(a)(6)(C)(ii)(I)), is amended by striking citizen and inserting national.

521.

(a)

(1)

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)

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)

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)

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)

Subject to subparagraph (C), permission to depart voluntarily under paragraph (1) shall not be valid for a period exceeding 90 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)

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)

Subsection (c) of such section is amended to read as follows:

(c)

(1)

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)

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)

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)

Subsection (e) of such section is amended to read as follows:

(e)

(1)

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)

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)

(1)

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)

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)

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)

(1)

Subsection (d) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended to read as follows:

(d)

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)

(A)

The alien will be liable for a civil penalty of $3,000.

(B)

The order allowing voluntary departure shall specify the amount of the penalty, which shall be acknowledged by the alien on the record.

(C)

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)

An alien will be ineligible for any benefits under this title until any civil penalty under this subsection is paid.

(2)

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)

(A)

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)

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)

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)

Section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended by adding at the end the following new subsection:

(g)

(1)

The Secretary of Homeland Security may permit an alien voluntarily to depart the United States at the alien’s own expense under this subsection at any time prior to the scheduling of the first merits hearing, in lieu of applying for another form of relief from removal, if the alien—

(A)

is deportable under section 237(a)(1);

(B)

is charged in a criminal proceeding in a State or local court for which conviction would subject the alien to deportation under paragraphs (2) through (6) of section 237(a); and

(C)

has accepted a plea bargain in such proceeding which stipulates that the alien, after consultation with counsel in such proceeding—

(i)

voluntarily waives application for another form of relief from removal;

(ii)

consents to transportation, under custody of a law enforcement officer of the State or local court, to an appropriate international port of entry where departure from the United States will occur;

(iii)

possesses or will promptly obtain travel documents issued by the foreign state of which the alien is a national or legal resident; and

(iv)

possesses the means to purchase transportation from the port of entry to the foreign state to which the alien will depart from the United States.

(2)

The Secretary shall promptly review an application for voluntary departure for compliance with the requirements of paragraph (1). The Secretary shall permit voluntary departure under this subsection unless the State or local jurisdiction is informed in writing not later that 30 days after such application is filed, that the Secretary intends to seek removal under section 240.

(e)

(1)

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)

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.

522.

(a)

(1)

Section 236(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1226(a)(2)) is amended to read as follows:

(2)

may, upon an express finding by an immigration judge, that the alien is not a flight risk and is not a threat to the United States, release the alien on a bond—

(A)

of not less than $5,000 release an alien; or

(B)

if the alien is a national of Canada or Mexico, of not less than $3,000; or.

(2)

Section 236(a) of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by inserting or the Secretary of Homeland Security after the Attorney General each place it appears.

(3)

Not later than 2 years after the enactment of this Act, the Secretary of Homeland Security shall submit to Congress a report on the number of aliens who are citizens or nationals of a country other than Canada or Mexico who are apprehended along an international land border of the United States between ports of entry.

(b)

Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended by adding at the end the following new paragraph:

(8)

Notwithstanding any other provision of law, the Secretary of Homeland Security shall take into custody any alien subject to a final order of removal, and cancel any bond previously posted for the alien, if the alien is produced within the prescribed time limit by the obligor on the bond. The obligor on the bond shall be deemed to have substantially performed all conditions imposed by the terms of the bond, and shall be released from liability on the bond, if the alien is produced within such time limit.

(c)

The amendments made by subsection (a) and (b) shall take effect on the date of the enactment of this Act and the amendment made by subsection (b) shall apply to all immigration bonds posted before, on, or after such date.

523.

(a)

Section 238 of the Immigration and Nationality Act (8 U.S.C. 1228) is amended—

(1)

by striking the section heading and inserting Expedited removal of criminal aliens;

(2)

in subsection (a), by striking the subsection heading and inserting: Expedited Removal From Correctional Facilities.—;

(3)

in subsection (b), by striking the subsection heading and inserting: Removal of Criminal Aliens.—;

(4)

in subsection (b), by striking paragraphs (1) and (2) and inserting the following:

(1)

The Secretary of Homeland Security may, in the case of an alien described in paragraph (2), determine the deportability of such alien and issue an order of removal pursuant to the procedures set forth in this subsection or section 240.

(2)

An alien is described in this paragraph if the alien, whether or not admitted into the United States, was convicted of any criminal offense described in subparagraph (A)(iii), (C), or (D) of section 237(a)(2).

;

(5)

in the subsection (c) that relates to presumption of deportability, by striking convicted of an aggravated felony and inserting described in paragraph (b)(2);

(6)

by redesignating the subsection (c) that relates to judicial removal as subsection (d); and

(7)

in subsection (d)(5) (as so redesignated), by striking , who is deportable under this Act,.

(b)

(1)

Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(A)(iii)) is amended—

(A)

in subclause (I), by striking Attorney General and inserting Secretary of Homeland Security each place it appears; and

(B)

by adding at the end the following new subclause:

(III)

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.

(2)

Section 235(b)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(F)) is amended—

(A)

by striking and who arrives by aircraft at a port of entry and inserting and—; and

(B)

by adding at the end the following:

(i)

who arrives by aircraft at a port of entry; or

(ii)

who is present in the United States and arrived in any manner at or between a port of entry.

(c)

Section 242(f)(2) of such Act (8 U.S.C. 1252(f)(2)) is amended by inserting or stay, whether temporarily or otherwise, after enjoin.

(d)

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 or convicted on or after such date.

524.

Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended to read as follows:

(5)

(A)

The Secretary of Homeland Security shall remove an alien who is an applicant for admission (other than an admissible alien presenting himself or herself for inspection at a port of entry or an alien paroled into the United States under section 212(d)(5)), after having been, on or after September 30, 1996, excluded, deported, or removed, or having departed voluntarily under an order of exclusion, deportation, or removal.

(B)

The removal described in subparagraph (A) shall not require any proceeding before an immigration judge, and shall be under the prior order of exclusion, deportation, or removal, which is not subject to reopening or review. The alien is not eligible and may not apply for or receive any immigration relief or benefit under this Act or any other law, with the exception of sections 208 or 241(b)(3) or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984, in the case of an alien who indicates either an intention to apply for asylum under section 208 or a fear of persecution or torture.

525.

Section 240A(c) of the Immigration and Nationality Act (8 U.S.C. 1229b(c)) is amended by adding at the end the following:

(7)

An alien who is inadmissible under section 212(a)(9)(B)(i).

526.

(a)

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 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)

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 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)

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)

The rules set forth in subsection (j) shall only apply with respect to an alien who was lawfully admitted the most recent time the alien entered the United States or has otherwise effected an entry into the United States.

(9)

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)

(1)

The rules set forth in this subsection apply in the case of an alien described in subsection (a)(8).

(2)

(A)

The Secretary of Homeland Security 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)

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 Secretary of State or other Federal agency and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.

(3)

(A)

The Secretary of Homeland Security 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)

(i)

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-day period authorized in subparagraph (A)—

(I)

until the alien is removed if the conditions described in subparagraph (A) or (B) of paragraph (4) apply; or

(II)

pending a determination as provided in subparagraph (C) of paragraph (4).

(ii)

The Secretary may renew a certification under paragraph (4)(B) 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)

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)

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)

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), if 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)

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)

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)

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)

The amendments made by subsection (a) shall take effect upon the date of the 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 the enactment of this Act; and

(2)

acts and conditions occurring or existing before, on, or after the date of the enactment of this Act.

527.

The Secretary of Homeland Security shall implement pilot programs in the 6 States with the largest estimated populations of deportable aliens to study the effectiveness of alternatives to detention, including electronic monitoring devices and intensive supervision programs, in ensuring alien appearance at court and compliance with removal orders.

528.

S. 2368 (109^th): Border Security and Interior Enforcement Improvement Act of 2006

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