< Back to H.R. 842 (110th Congress, 2007–2009)

Text of the CLEAR Act of 2007

This bill was introduced on February 6, 2007, in a previous session of Congress, but was not enacted. The text of the bill below is as of Feb 6, 2007 (Introduced).

Source: GPO

I

110th CONGRESS

1st Session

H. R. 842

IN THE HOUSE OF REPRESENTATIVES

February 6, 2007

introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To provide for enhanced Federal, State, and local assistance in the enforcement of the immigration laws, to amend the Immigration and Nationality Act, to authorize appropriations to carry out the State Criminal Alien Assistance Program, and for other purposes.

1.

Short title; table of contents; State defined; severability

(a)

Short title

This Act may be cited as the Clear Law Enforcement for Criminal Alien Removal Act of 2007 or CLEAR Act of 2007.

(b)

Table of contents

The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents; State defined; severability.

Sec. 2. Federal affirmation of assistance in the immigration law enforcement by States and political subdivisions of States.

Sec. 3. State authorization for assistance in the enforcement of immigration laws encouraged.

Sec. 4. Civil and criminal penalties for aliens unlawfully present in the United States.

Sec. 5. Listing of immigration violators in the National Crime Information Center database.

Sec. 6. State and local law enforcement provision of information about apprehended aliens.

Sec. 7. Financial assistance to State and local police agencies that assist in the enforcement of immigration laws.

Sec. 8. Increased Federal detention space.

Sec. 9. Federal custody of aliens unlawfully present in the United States apprehended by State or local law enforcement.

Sec. 10. Training of State and local law enforcement personnel relating to the enforcement of immigration laws.

Sec. 11. Immunity.

Sec. 12. Institutional removal program (IRP).

Sec. 13. State criminal alien assistance program (SCAAP).

(c)

State defined

For purposes of this Act, the term State has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).

(d)

Severability

If any provision of this Act, or the application of such provision to any person or circumstance, is held invalid, 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 invalidation.

2.

Federal affirmation of assistance in the immigration law enforcement by States and political subdivisions of States

Notwithstanding any other provision of law and reaffirming the existing inherent authority of States, law enforcement personnel of a State, or of 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 purposes of assisting in the enforcement of the immigration laws of the United States in the course of carrying out routine duties. This State authority has never been displaced or preempted by Congress.

3.

State authorization for assistance in the enforcement of immigration laws encouraged

(a)

In general

Effective two years after the date of the enactment of this Act, a State, or a political subdivision of a State, that has in effect a statute, policy, or practice that prohibits law enforcement officers of the State, or of a political subdivision of the State, from assisting or cooperating with Federal immigration law enforcement in the course of carrying out the officers’ routine law enforcement duties shall not receive any of the funds that would otherwise be allocated to the State under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)).

(b)

Construction

Nothing in this section shall require law enforcement officials from States, or from political subdivisions of States, to report or arrest victims or witnesses of a criminal offense.

(c)

Reallocation of funds

Any funds that are not allocated to a State, or to a political subdivision of a State, due to the failure of the State, or of the political subdivision of the State, to comply with subsection (a) shall be reallocated to States, or to political subdivisions of States, that comply with such subsection.

4.

Civil and criminal penalties for aliens unlawfully present in the United States

(a)

Aliens unlawfully present in the United States

(1)

In general

Title II of the Immigration and Nationality Act (8 U.S.C. 1151 et seq.) is amended by inserting after section 275 the following:

275A.

Criminal penalties for unlawful presence in the United States

(a)

In general

In addition to any other penalty, an alien who is present in the United States in violation of this Act shall be fined under title 18, United States Code, imprisoned not less than one year, or both.

(b)

Defense

It shall be an affirmative defense to a violation of subsection (a) that the alien overstayed the time allotted under a visa due to an exceptional and extremely unusual hardship or physical illness that prevented the alien from leaving the United States by the required date.

.

(2)

Clerical amendment

The table of contents of such Act is amended by inserting after the item relating to section 275 the following new item:

Sec. 275A. Criminal penalties for unlawful presence in the United States.

.

(b)

Increase in criminal penalties for illegal entry

Section 275(a) of such Act (8 U.S.C. 1325(a)) is amended by striking 6 months, and inserting one year,.

(c)

Increase in civil penalties for various violations of the immigration laws of the United States

Section 275(b) of such Act (8 U.S.C. 1325(b)) is amended to read as follows:

(b)
(1)

Subject to paragraph (2), any alien described in paragraph (3) shall be subject to a civil penalty of—

(A)

$500 for the first violation;

(B)

$1,000 in the case of an alien who has once previously been subject to a civil penalty under this subsection, in addition to forfeiture of all civil assets and permanent disbarment from entry into the United States;

(C)

$5,000 in the case of an alien who has twice previously been subject to a civil penalty under this subsection, in addition to forfeiture of all civil assets and permanent disbarment from entry into the United States.

(2)

In the case of an alien described in paragraph (3)(D), the alien shall be subject to civil penalties under this subsection that are five times the amounts set forth under paragraph (1).

(3)

An alien described in this paragraph is an alien who—

(A)

is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers;

(B)

enters the United States without inspection;

(C)

fails to depart the United States within 30 days after the expiration date of a nonimmigrant visa or a voluntary departure agreement and is not in other lawful status; or

(D)

fails to depart the United States within 30 days after the date of a final order of removal and is not in other lawful status.

(4)

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

.

(d)

Permission To depart voluntarily

Section 240B of such Act (8 U.S.C. 1229c) is amended—

(1)

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

(2)

in subsection (a)(2)(A), by striking 120 days and inserting 30 days.

5.

Listing of immigration violators in the National Crime Information Center database

(a)

Provision of information to the NCIC

Not later than 180 days after the date of the enactment of this Act and periodically thereafter as updates may require, the Under Secretary for Border and Transportation Security of the Department of Homeland Security shall provide the National Crime Information Center of the Department of Justice with such information as the Under Secretary may possess regarding any aliens against whom a final order of removal has been issued, any aliens who have signed a voluntary departure agreement, any aliens who have overstayed their authorized period of stay, and any aliens whose visas have been revoked. The National Crime Information Center shall enter such information into the Immigration Violators File of the National Crime Information Center database, regardless of whether—

(1)

the alien concerned received notice of a final order of removal;

(2)

the alien concerned has already been removed; or

(3)

sufficient identifying information is available with respect to the alien concerned.

(b)

Inclusion of information in the NCIC database

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 by aliens of the immigration laws of the United States, regardless of whether any such alien has received notice of the violation or whether sufficient identifying information is available with respect to any such alien and even if any such alien has already been removed from the United States; and

.

6.

State and local law enforcement provision of information about apprehended aliens

(a)

Provision of information

In compliance with section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) and section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644), each State, and each political subdivision of a State, is encouraged to provide the Secretary of Homeland Security in a timely manner with the information specified in subsection (b) with respect to each alien apprehended in the jurisdiction of the State, or in the political subdivision of the State, who is believed to be in violation of the immigration laws of the United States.

(b)

Information required

The information referred to in subsection (a) is as follows:

(1)

The alien’s name.

(2)

The alien’s address or place of residence.

(3)

A physical description of the alien.

(4)

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

(5)

If applicable, the alien’s driver’s license number and the State of issuance of such license.

(6)

If applicable, 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.

(7)

If applicable, the license plate number, make, and model of any automobile registered to, or driven by, the alien.

(8)

A photo of the alien, if available or readily obtainable.

(9)

The alien’s fingerprints, if available or readily obtainable.

(c)

Annual report on reporting

The Secretary shall maintain and annually submit to Congress a detailed report listing the States, or the political subdivisions of States, that have provided information under subsection (a) in the preceding year.

(d)

Reimbursement

The Secretary of Homeland Security shall reimburse States, and political subdivisions of a State, for all reasonable costs, as determined by the Secretary, incurred by the State, or the political subdivision of a State, as a result of providing information under subsection (a).

(e)

Authorization of appropriations

There is authorized to be appropriated to the Secretary such sums as are necessary to carry out this section.

(f)

Construction

Nothing in this section shall require law enforcement officials of a State, or of a political subdivision of a State, to provide the Secretary of Homeland Security with information related to a victim of a crime or witness to a criminal offense.

7.

Financial assistance to State and local police agencies that assist in the enforcement of immigration laws

(a)

Grants for special equipment for housing and processing certain aliens

From amounts made available to make grants under this section, the Secretary of Homeland Security shall make grants to States, and to political subdivisions of States, for procurement of equipment, technology, facilities, and other products that facilitate and are directly related to investigating, apprehending, arresting, detaining, or transporting aliens who have violated the immigration law of the United States, including additional administrative costs incurred under this Act.

(b)

Eligibility

To be eligible to receive a grant under this section, a State, or a political subdivision of a State, must have the authority to, and have in effect the policy and practice to, assist in the enforcement of the immigration laws of the United States in the course of carrying out the routine law enforcement duties of such State or political subdivision of a State.

(c)

Funding

There is authorized to be appropriated to the Secretary for grants under this section $1,000,000,000 for fiscal year 2008 and each subsequent fiscal year.

(d)

GAO audit

Not later than three years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct an audit of funds distributed to States, and to political subdivisions of a State, under subsection (a).

8.

Increased Federal detention space

(a)

Construction or acquisition of detention facilities

(1)

In general

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, with at least 500 beds per facility, for aliens detained pending removal from the United States or a decision regarding such removal.

(2)

Determinations

The location of any detention facility built or acquired in accordance with this subsection shall be determined by the Deputy Assistant Director of the Detention Management Division of the Immigration and Customs Enforcement Office of Detention and Removal within United States Immigration and Customs Enforcement.

(3)

Use of installations under base closure laws

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 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note) for use in accordance with paragraph (1).

(b)

Authorization of appropriations

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

(c)

Technical and conforming amendment

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.

9.

Federal custody of aliens unlawfully present in the United States apprehended by State or local law enforcement

(a)

State apprehension

(1)

In general

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

240D.

Custody of aliens unlawfully present in the United States

(a)

Transfer of custody by State and local officials

If a State, or a political subdivision of the State, exercising authority with respect to the apprehension or arrest of an alien who is unlawfully present in the United States submits to the Secretary of Homeland Security a request that the alien be taken into Federal custody, the Secretary—

(1)

shall—

(A)

not later than 48 hours after the conclusion of the State, or the political subdivision of a State, charging process or dismissal process, or if no State or political subdivision charging or dismissal process is required, not later than 48 hours after the alien is apprehended, take the alien into the custody of the Federal Government and incarcerate the alien; or

(B)

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

(2)

shall designate at least one 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 aliens to the Department of Homeland Security.

(b)

Policy on detention in State and local detention facilities

In carrying out section 241(g)(1), the Attorney General or Secretary of Homeland Security shall ensure that an alien arrested under this Act shall be detained, pending the alien’s being taken for the examination under this section, in a State or local prison, jail, detention center, or other comparable facility. Notwithstanding any other provision of law or regulation, such facility is adequate for detention, if—

(1)

such a facility is the most suitably located Federal, State, or local facility available for such purpose under the circumstances;

(2)

an appropriate arrangement for such use of the facility can be made; and

(3)

such facility satisfies the standards for the housing, care, and security of persons held in custody of a United States marshal.

(c)

Reimbursement

The Secretary of Homeland Security shall reimburse States, and political subdivisions of a State, for all reasonable expenses, as determined by the Secretary, incurred by the State, or political subdivision, as a result of the incarceration and transportation of an alien who is unlawfully present in the United States as described in subparagraphs (A) and (B) of subsection (a)(1). Compensation provided for costs incurred under such subparagraphs shall be the average cost of incarceration of a prisoner in the relevant State, as determined by the chief executive officer of a State, or of a political subdivision of a State, plus the cost of transporting the alien from the point of apprehension to the place of detention, and to the custody transfer point if the place of detention and place of custody are different.

(d)

Secure facilities

The Secretary of Homeland Security shall ensure that aliens incarcerated in Federal facilities pursuant to this Act are held in facilities that provide an appropriate level of security.

(e)

Transfer

(1)

In general

In carrying out this section, the Secretary of Homeland Security shall establish a regular circuit and schedule for the prompt transfer of apprehended aliens from the custody of States, and political subdivisions of a State, to Federal custody.

(2)

Contracts

The Secretary may enter into contracts, including appropriate private contracts, to implement this subsection.

(f)

Definition

For purposes of this section, the term alien who is unlawfully present in the United States means an alien who—

(1)

entered the United States without inspection or at any time, manner 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.

(g)

Authorization of appropriations for the detention and transportation to Federal custody of aliens unlawfully present

There is authorized to be appropriated to the Secretary of Homeland Security $500,000,000 for fiscal year 2008 and each subsequent fiscal year for the detention and removal of aliens unlawfully present in the United States under this Act.

.

(2)

Clerical amendment

The table of contents of such Act is amended by inserting after the item relating to section 240C the following new item:

Sec. 240D. Custody of aliens unlawfully present in the United States.

.

(b)

GAO audit

Not later than three years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct an audit of compensation to States, and to political subdivisions of a State, for the incarceration of aliens unlawfully present in the United States under section 240D(a) of the Immigration and Nationality Act (as added by subsection (a)(1)).

10.

Training of State and local law enforcement personnel relating to the enforcement of immigration laws

(a)

Establishment of training manual and pocket guide

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

(1)

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

(2)

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

(b)

Availability

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

(c)

Applicability

Nothing in this section shall be construed to require State or local law enforcement personnel to carry the training manual or pocket guide with them while on duty.

(d)

Costs

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

(e)

Training flexibility

(1)

In general

The Secretary of Homeland Security shall make training of State and local law enforcement officers available through as many means as possible, including through residential training at the Center for Domestic Preparedness, onsite 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. E-learning through a secure, encrypted distributed learning system that has all its servers based in the United States, is sealable, survivable, and can have a portal in place not later than 30 days after the date of the enactment of this Act, shall be made available by the Federal Law Enforcement Training Center Distributed Learning Program for State and local law enforcement personnel.

(2)

Federal personnel training

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

(3)

Clarification

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 to assist in the enforcement of Federal immigration laws in the normal course of carrying out the normal law enforcement duties of such officers.

(f)

Training limitation

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

(1)

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

(2)

in paragraph (2), by adding at the end the following new sentence: Such training shall not exceed 14 days or 80 hours, whichever is longer..

11.

Immunity

(a)

Personal immunity

Notwithstanding any other provision of law, a law enforcement officer of a State or local law enforcement agency who is acting within the scope of the officer’s official duties shall be immune, to the same extent as a Federal law enforcement officer, from personal liability arising out of the performance of any duty described in this Act.

(b)

Agency immunity

Notwithstanding any other provision of law, a State or local law enforcement agency 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 a law enforcement officer of such agency committed a violation of Federal, State, or local criminal law in the course of enforcing such immigration law.

12.

Institutional removal program (IRP)

(a)

Continuation and expansion

(1)

In general

The Secretary of Homeland Security shall continue to operate and implement the program known as the Institutional Removal Program (IRP) which—

(A)

identifies removable criminal aliens in Federal and State correctional facilities;

(B)

ensures such aliens are not released into the community; and

(C)

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

(2)

Expansion

The Institutional Removal Program shall be extended to all States. Any State that receives Federal funds for the incarceration of criminal aliens shall—

(A)

cooperate with officials of the Institutional Removal Program;

(B)

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

(C)

promptly convey such information to officials of such Program as a condition of receiving such funds.

(b)

Authorization for detention after completion of State or local prison sentence

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

(1)

hold a criminal 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 United States Immigration and Customs Enforcement can take the alien into custody.

(c)

Technology usage

Technology such as video conferencing 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 IDENT, 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.

(d)

Authorization of appropriations

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

(1)

$115,000,000 for fiscal year 2008;

(2)

$130,000,000 for fiscal year 2009;

(3)

$145,000,000 for fiscal year 2010; and

(4)

$160,000,000 for fiscal year 2011.

13.

State criminal alien assistance program (SCAAP)

Section 241(i)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) is amended—

(1)

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

(2)

in subparagraph (C), by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following new subparagraph:

(D)

$1,000,000,000 for fiscal year 2012 and each subsequent fiscal year.

.