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S. 1348 (110th): Comprehensive Immigration Reform Act of 2007

The text of the bill below is as of May 10, 2007 (Placed on Calendar in the Senate).


II

Calendar No. 144

110th CONGRESS

1st Session

S. 1348

IN THE SENATE OF THE UNITED STATES

May 9, 2007

(for himself, Mr. Leahy, Mr. Kennedy, Mr. Menendez, and Mr. Salazar) introduced the following bill; which was read the first time

May 10, 2007

Read the second time and placed on the calendar

A BILL

To provide for comprehensive immigration reform and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Comprehensive Immigration Reform Act of 2007.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Reference to the Immigration and Nationality Act.

Sec. 3. Definitions.

Sec. 4. Severability.

TITLE I—Border Enforcement

Subtitle A—Assets for Controlling United States Borders

Sec. 101. Enforcement personnel.

Sec. 102. Technological assets.

Sec. 103. Infrastructure.

Sec. 104. Border Patrol checkpoints.

Sec. 105. Ports of entry.

Sec. 106. Construction of strategic border fencing and vehicle barriers.

Subtitle B—Border Security Plans, Strategies, and Reports

Sec. 111. Surveillance plan.

Sec. 112. National Strategy for Border Security.

Sec. 113. Reports on improving the exchange of information on North American security.

Sec. 114. Improving the security of Mexico’s southern border.

Sec. 115. Combating human smuggling.

Sec. 116. Deaths at United States-Mexico border.

Sec. 117. Cooperation with the Government of Mexico.

Subtitle C—Other Border Security Initiatives

Sec. 121. Biometric data enhancements.

Sec. 122. Secure communication.

Sec. 123. Border Patrol training capacity review.

Sec. 124. US–VISIT System.

Sec. 125. Document fraud detection.

Sec. 126. Improved document integrity.

Sec. 127. Cancellation of visas.

Sec. 128. Biometric entry-exit system.

Sec. 129. Border study.

Sec. 130. Secure Border Initiative financial accountability.

Sec. 131. Mandatory detention for aliens apprehended at or between ports of entry.

Sec. 132. Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements.

Sec. 133. Temporary National Guard support for securing the southern land border of the United States.

Sec. 134. Report on incentives to encourage certain members and former members of the Armed Forces to serve in United States Customs and Border Protection.

Sec. 135. Western Hemisphere Travel Initiative.

Subtitle D—Border Law Enforcement Relief Act

Sec. 141. Short title.

Sec. 142. Findings.

Sec. 143. Border relief grant program.

Sec. 144. Enforcement of Federal immigration law.

Subtitle E—Rapid Response Measures

Sec. 151. Deployment of Border Patrol agents.

Sec. 152. Border Patrol major assets.

Sec. 153. Electronic equipment.

Sec. 154. Personal equipment.

Sec. 155. Authorization of appropriations.

TITLE II—Interior Enforcement

Sec. 201. Removal and denial of benefits to terrorist aliens.

Sec. 202. Detention and removal of aliens ordered removed.

Sec. 203. Aggravated felony.

Sec. 204. Terrorist bars.

Sec. 205. Increased criminal penalties related to gang violence, removal, and alien smuggling.

Sec. 206. Illegal entry.

Sec. 207. Illegal reentry.

Sec. 208. Reform of passport, visa, and Immigration fraud offenses.

Sec. 209. Inadmissibility and removal for passport and immigration fraud offenses.

Sec. 210. Incarceration of criminal aliens.

Sec. 211. Encouraging aliens to depart voluntarily.

Sec. 212. Deterring aliens ordered removed from remaining in the United States unlawfully.

Sec. 213. Prohibition of the sale of firearms to, or the possession of firearms by certain aliens.

Sec. 214. Uniform statute of limitations for certain immigration, naturalization, and peonage offenses.

Sec. 215. Diplomatic Security Service.

Sec. 216. Field agent allocation and background checks.

Sec. 217. Construction.

Sec. 218. State Criminal Alien Assistance Program.

Sec. 219. Transportation and processing of illegal aliens apprehended by State and local law enforcement officers.

Sec. 220. Reducing illegal immigration and alien smuggling on tribal lands.

Sec. 221. Alternatives to detention.

Sec. 222. Conforming amendment.

Sec. 223. Reporting requirements.

Sec. 224. State and local enforcement of Federal immigration laws.

Sec. 225. Removal of drunk drivers.

Sec. 226. Medical services in underserved areas.

Sec. 227. Expedited removal.

Sec. 228. Protecting immigrants from convicted sex offenders.

Sec. 229. Law enforcement authority of States and political subdivisions and transfer to Federal custody.

Sec. 230. Laundering of monetary instruments.

Sec. 231. Listing of Immigration violators in the National Crime Information Center database.

Sec. 232. Cooperative enforcement programs.

Sec. 233. 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. 234. Determination of immigration status of individuals charged with Federal offenses.

Sec. 235. Expansion of the Justice Prisoner and Alien Transfer System.

TITLE III—Unlawful Employment of Aliens

Sec. 301. Unlawful employment of aliens.

Sec. 302. Employer Compliance Fund.

Sec. 303. Additional worksite enforcement and fraud detection agents.

Sec. 304. Clarification of ineligibility for misrepresentation.

Sec. 305. Antidiscrimination protections.

TITLE IV—Nonimmigrant and Immigrant Visa Reform

Subtitle A—Temporary Guest Workers

Sec. 401. Immigration impact study.

Sec. 402. Nonimmigrant temporary worker.

Sec. 403. Admission of nonimmigrant temporary guest workers.

Sec. 404. Employer obligations.

Sec. 405. Alien employment management system.

Sec. 406. Rulemaking; effective date.

Sec. 407. Recruitment of United States workers.

Sec. 408. Temporary Guest Worker Visa Program Task Force.

Sec. 409. Requirements for participating countries.

Sec. 410. S visas.

Sec. 411. L visa limitations.

Sec. 412. Compliance investigators.

Sec. 413. Visa waiver program expansion.

Sec. 414. Authorization of appropriations.

Subtitle B—Immigration Injunction Reform

Sec. 421. Short title.

Sec. 422. Appropriate remedies for immigration legislation.

Sec. 423. Effective date.

TITLE V—Backlog Reduction

Subtitle A—Backlog Reduction

Sec. 501. Elimination of existing backlogs.

Sec. 502. Country limits.

Sec. 503. Allocation of immigrant visas.

Sec. 504. Relief for minor children and widows.

Sec. 505. Shortage occupations.

Sec. 506. Relief for widows and orphans.

Sec. 507. Student visas.

Sec. 508. Visas for individuals with advanced degrees.

Sec. 509. Children of Filipino World War II veterans.

Sec. 510. Expedited adjudication of employer petitions for aliens of extraordinary artistic ability.

Sec. 511. Powerline workers.

Sec. 512. Determinations with respect to children under the Haitian Refugee Immigration Fairness Act of 1998.

Subtitle B—SKIL Act of 2007

Sec. 521. Short title.

Sec. 522. H–1B visa holders.

Sec. 523. Market-based visa limits.

Sec. 524. United States educated immigrants.

Sec. 525. Student visa reform.

Sec. 526. L–1 visa holders subject to visa backlog.

Sec. 527. Retaining workers subject to green card backlog.

Sec. 528. Streamlining the adjudication process for established employers.

Sec. 529. Providing premium processing of employment-based visa petitions.

Sec. 530. Eliminating procedural delays in labor certification process.

Sec. 531. Completion of background and security checks.

Sec. 532. Visa revalidation.

Subtitle C—Preservation of Immigration Benefits for Hurricane Katrina Victims

Sec. 541. Short title.

Sec. 542. Definitions.

Sec. 543. Special immigrant status.

Sec. 544. Extension of filing or reentry deadlines.

Sec. 545. Humanitarian relief for certain surviving spouses and children.

Sec. 546. Recipient of public benefits.

Sec. 547. Age-out protection.

Sec. 548. Employment eligibility verification.

Sec. 549. Naturalization.

Sec. 550. Discretionary authority.

Sec. 551. Evidentiary standards and regulations.

Sec. 552. Identification documents.

Sec. 553. Waiver of regulations.

Sec. 554. Notices of change of address.

Sec. 555. Foreign students and exchange program participants.

TITLE VI—Work Authorization and Legalization of undocumented individuals

Subtitle A—Access to Earned Adjustment and Mandatory Departure and Reentry

Sec. 601. Access to earned adjustment and mandatory departure and reentry.

Subtitle B—Agricultural Job Opportunities, Benefits, and Security

Sec. 611. Short title.

Sec. 612. Definitions.

Chapter 1—Pilot program for earned status adjustment of agricultural workers

Sec. 613. Agricultural workers.

Sec. 614. Correction of Social Security records.

Chapter 2—Reform of H–2A worker program

Sec. 615. Amendment to the Immigration and Nationality Act.

Chapter 3—Miscellaneous provisions

Sec. 616. Determination and use of user fees.

Sec. 617. Regulations.

Sec. 618. Report to Congress.

Sec. 619. Effective date.

Subtitle C—DREAM Act of 2007

Sec. 621. Short title.

Sec. 622. Definitions.

Sec. 623. Restoration of State option to determine residency for purposes of higher education benefits.

Sec. 624. Cancellation of removal and adjustment of status of certain long-term residents who entered the United States as children.

Sec. 625. Conditional permanent resident status.

Sec. 626. Retroactive benefits.

Sec. 627. Exclusive jurisdiction.

Sec. 628. Penalties for false statements in application.

Sec. 629. Confidentiality of information.

Sec. 630. Expedited processing of applications; prohibition on fees.

Sec. 631. Higher Education assistance.

Sec. 632. GAO report.

Subtitle D—Programs To Assist Nonimmigrant Workers

Sec. 641. Ineligibility and removal before application period.

Sec. 642. Grants to support public education and community training.

Sec. 643. Strengthening American citizenship.

Sec. 644. Supplemental immigration fee.

Sec. 645. Addressing poverty in Mexico.

TITLE VII—Miscellaneous

Subtitle A—Immigration Litigation Reduction

Chapter 1—Appeals and review

Sec. 701. Additional immigration personnel.

Chapter 2—Immigration review reform

Sec. 702. Board of Immigration Appeals.

Sec. 703. Immigration judges.

Sec. 704. Removal and review of judges.

Sec. 705. Legal orientation program.

Sec. 706. Rulemaking.

Sec. 707. GAO study on the appellate process for immigration appeals.

Sec. 708. Senior judge participation in the selection of magistrates.

Subtitle B—Citizenship Assistance for Members of the Armed Services

Sec. 711. Short title.

Sec. 712. Waiver of requirement for fingerprints for members of the Armed Forces.

Sec. 713. Provision of information on naturalization to members of the Armed Forces.

Sec. 714. Provision of information on naturalization to the public.

Sec. 715. Reports.

Subtitle C—State Court Interpreter Grant Program

Sec. 721. Short title.

Sec. 722. Findings.

Sec. 723. State court interpreter grants.

Sec. 724. Authorization of appropriations.

Subtitle D—Border Infrastructure and Technology Modernization

Sec. 731. Short title.

Sec. 732. Definitions.

Sec. 733. Port of Entry Infrastructure Assessment Study.

Sec. 734. National Land Border Security Plan.

Sec. 735. Expansion of commerce security programs.

Sec. 736. Port of entry technology demonstration program.

Sec. 737. Authorization of appropriations.

Subtitle E—Family Humanitarian Relief

Sec. 741. Short title.

Sec. 742. Adjustment of status for certain nonimmigrant victims of terrorism.

Sec. 743. Cancellation of removal for certain immigrant victims of terrorism.

Sec. 744. Exceptions.

Sec. 745. Evidence of death.

Sec. 746. Definitions.

Subtitle F—Other Matters

Sec. 751. Noncitizen membership in the Armed Forces.

Sec. 752. Surveillance technologies programs.

Sec. 753. Comprehensive immigration efficiency review.

Sec. 754. Northern Border Prosecution Initiative.

Sec. 755. Southwest Border Prosecution Initiative.

Sec. 756. Grant program to assist eligible applicants.

Sec. 757. Screening of municipal solid waste.

Sec. 758. Access to immigration services in areas that are not accessible by road.

Sec. 759. Border security on certain Federal land.

Sec. 760. Unmanned aerial vehicles.

Sec. 761. Relief for widows and orphans.

Sec. 762. Terrorist activities.

Sec. 763. Family unity.

Sec. 764. Travel document plan.

Sec. 765. English as national language.

Sec. 766. Requirements for naturalization.

Sec. 767. Declaration of English.

Sec. 768. Preserving and enhancing the role of the English language.

Sec. 769. Exclusion of illegal aliens from congressional apportionment tabulations.

Sec. 770. Office of Internal Corruption Investigation.

Sec. 771. Adjustment of status for certain persecuted religious minorities.

Sec. 772. Eligibility of agricultural and forestry workers for certain legal assistance.

Sec. 773. Designation of program countries.

Sec. 774. Global healthcare cooperation.

Sec. 775. Attestation by healthcare workers.

Sec. 776. Public access to the Statue of Liberty.

Sec. 777. National security determination.

TITLE VIII—Intercountry Adoption Reform

Sec. 801. Short title.

Sec. 802. Findings; purposes.

Sec. 803. Definitions.

Subtitle A—Administration of intercountry adoptions

Sec. 811. Office of Intercountry Adoptions.

Sec. 812. Recognition of convention adoptions in the United States.

Sec. 813. Technical and conforming amendment.

Sec. 814. Transfer of functions.

Sec. 815. Transfer of resources.

Sec. 816. Incidental transfers.

Sec. 817. Savings provisions.

Subtitle B—Reform of United States Laws Governing Intercountry Adoptions

Sec. 821. Automatic acquisition of citizenship for adopted children born outside the United States.

Sec. 822. Revised procedures.

Sec. 823. Nonimmigrant visas for children traveling to the United States to be adopted by a United States citizen.

Sec. 824. Definition of adoptable child.

Sec. 825. Approval to adopt.

Sec. 826. Adjudication of child status.

Sec. 827. Funds.

Subtitle C—Enforcement

Sec. 831. Civil penalties and enforcement.

Sec. 832. Criminal penalties.

2.

Reference to the Immigration and Nationality Act

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

3.

Definitions

In this Act:

(1)

Department

Except as otherwise provided, the term Department means the Department of Homeland Security.

(2)

Secretary

Except as otherwise provided, the term Secretary means the Secretary of Homeland Security.

4.

Severability

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 invalid for any reason, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any other person or circumstance shall not be affected by such holding.

I

Border Enforcement

A

Assets for Controlling United States Borders

101.

Enforcement personnel

(a)

Additional personnel

(1)

Port of entry inspectors

In each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 500 the number of positions for full-time active duty port of entry inspectors and provide appropriate training, equipment, and support to such additional inspectors.

(2)

Investigative personnel

(A)

Immigration and customs enforcement investigators

Section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3734) is amended by striking 800 and inserting 1000.

(B)

Additional personnel

In addition to the positions authorized under section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004, as amended by subparagraph (A), during each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 200 the number of positions for personnel within the Department assigned to investigate alien smuggling.

(3)

Deputy united states marshals

In each of the fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations, increase by not less than 50 the number of positions for full-time active duty Deputy United States Marshals that investigate criminal matters related to immigration.

(4)

Recruitment of former military personnel

(A)

In general

The Commissioner of United States Customs and Border Protection, in conjunction with the Secretary of Defense or a designee of the Secretary of Defense, shall establish a program to actively recruit members of the Army, Navy, Air Force, Marine Corps, and Coast Guard who have elected to separate from active duty.

(B)

Report

Not later than 180 days after the date of the enactment of this Act, the Commissioner shall submit a report on the implementation of the recruitment program established pursuant to subparagraph (A) to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.

(b)

Authorization of appropriations

(1)

Port of entry inspectors

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out paragraph (1) of subsection (a).

(2)

Deputy united states marshals

There are authorized to be appropriated to the Attorney General such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a)(3).

(3)

Border patrol agents

Section 5202 of the Intelligence Reform and Terrorism Prevention Act of 2004 (118 Stat. 3734) is amended to read as follows:

5202.

Increase in Full-Time Border Patrol agents

(a)

Annual increases

The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase the number of positions for full-time active-duty border patrol agents within the Department of Homeland Security (above the number of such positions for which funds were appropriated for the preceding fiscal year), by—

(1)

2,000 in fiscal year 2008;

(2)

2,400 in fiscal year 2009;

(3)

2,400 in fiscal year 2010;

(4)

2,400 in fiscal year 2011; and

(5)

2,400 in fiscal year 2012.

(b)

Northern border

In each of the fiscal years 2008 through 2012, in addition to the border patrol agents assigned along the northern border of the United States during the previous fiscal year, the Secretary shall assign a number of border patrol agents equal to not less than 20 percent of the net increase in border patrol agents during each such fiscal year.

(c)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.

.

102.

Technological assets

(a)

Acquisition

Subject to the availability of appropriations, the Secretary shall procure additional unmanned aerial vehicles, cameras, poles, sensors, and other technologies necessary to achieve operational control of the international borders of the United States and to establish a security perimeter known as a virtual fence along such international borders to provide a barrier to illegal immigration.

(b)

Increased Availability of Equipment

The Secretary and the Secretary of Defense shall develop and implement a plan to use 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 the Secretary in carrying out surveillance activities conducted at or near the international land borders of the United States to prevent illegal immigration.

(c)

Report

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

(1)

a description of the current use of Department of Defense equipment to assist the Secretary in carrying out surveillance of the international land borders of the United States and assessment of the risks to citizens of the United States and foreign policy interests associated with the use of such equipment;

(2)

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

(3)

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

(d)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a).

(e)

Unmanned Aerial Vehicle Pilot Program

During the 1-year period beginning on the date on which the report is submitted under subsection (c), the Secretary shall conduct a pilot program to test unmanned aerial vehicles for border surveillance along the international border between Canada and the United States.

(f)

Construction

Nothing in this section may be construed as altering or amending the prohibition on the use of any part of the Army or the Air Force as a posse comitatus under section 1385 of title 18, United States Code.

103.

Infrastructure

(a)

Construction of Border Control Facilities

Subject to the availability of appropriations, the Secretary shall construct all-weather roads and acquire additional vehicle barriers and facilities necessary to achieve operational control of the international borders of the United States.

(b)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a).

104.

Border Patrol checkpoints

The Secretary may maintain temporary or permanent checkpoints on roadways in border patrol sectors that are located in proximity to the international border between the United States and Mexico.

105.

Ports of entry

The Secretary is authorized to—

(1)

construct additional ports of entry along the international land borders 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.

106.

Construction of strategic border fencing and vehicle barriers

(a)

Tucson Sector

The Secretary shall—

(1)

replace all aged, deteriorating, or damaged primary fencing in the Tucson Sector located proximate to population centers in Douglas, Nogales, Naco, and Lukeville, Arizona with double- or triple-layered fencing running parallel to the international border between the United States and Mexico;

(2)

extend the double- or triple-layered fencing for a distance of not less than 2 miles beyond urban areas, except that the double- or triple-layered fence shall extend west of Naco, Arizona, for a distance of 10 miles; and

(3)

construct not less than 150 miles of vehicle barriers and all-weather roads in the Tucson Sector running parallel to the international border between the United States and Mexico in areas that are known transit points for illegal cross-border traffic.

(b)

Yuma Sector

The Secretary shall—

(1)

replace all aged, deteriorating, or damaged primary fencing in the Yuma Sector located proximate to population centers in Yuma, Somerton, and San Luis, Arizona with double- or triple-layered fencing running parallel to the international border between the United States and Mexico;

(2)

extend the double- or triple-layered fencing for a distance of not less than 2 miles beyond urban areas in the Yuma Sector; and

(3)

construct not less than 50 miles of vehicle barriers and all-weather roads in the Yuma Sector running parallel to the international border between the United States and Mexico in areas that are known transit points for illegal cross-border traffic.

(c)

Other High Trafficked Areas

The Secretary shall construct not less than 370 miles of triple-layered fencing which may include portions already constructed in San Diego Tucson and Yuma Sectors, and 500 miles of vehicle barriers in other areas along the southwest border that the Secretary determines are areas that are most often used by smugglers and illegal aliens attempting to gain illegal entry into the United States.

(d)

Construction Deadline

The Secretary shall immediately commence construction of the fencing, barriers, and roads described in subsections (a), (b), and (c) and shall complete such construction not later than 2 years after the date of the enactment of this Act.

(e)

Report

Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes the progress that has been made in constructing the fencing, barriers, and roads described in subsections (a), (b), and (c).

(f)

Authorization of Appropriations

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

B

Border Security Plans, Strategies, and Reports

111.

Surveillance plan

(a)

Requirement for Plan

The Secretary shall develop a comprehensive plan for the systematic surveillance of the international land and maritime borders of the United States.

(b)

Content

The plan required by subsection (a) shall include the following:

(1)

An assessment of existing technologies employed on the international land and maritime borders of the United States.

(2)

A description of the compatibility of new surveillance technologies with surveillance technologies in use by the Secretary on the date of the enactment of this Act.

(3)

A description of how the Commissioner of the United States Customs and Border Protection of the Department is working, or is expected to work, with the Under Secretary for Science and Technology of the Department to identify and test surveillance technology.

(4)

A description of the specific surveillance technology to be deployed.

(5)

Identification of any obstacles that may impede such deployment.

(6)

A detailed estimate of all costs associated with such deployment and with continued maintenance of such technologies.

(7)

A description of how the Secretary is working with the Administrator of the Federal Aviation Administration on safety and airspace control issues associated with the use of unmanned aerial vehicles.

(c)

Submission to Congress

Not later than 6 months after the date of the enactment of this Act, the Secretary shall submit to Congress the plan required by this section.

112.

National Strategy for Border Security

(a)

Requirement for Strategy

The Secretary, in consultation with the heads of other appropriate Federal agencies, shall develop a National Strategy for Border Security that describes actions to be carried out to achieve operational control over all ports of entry into the United States and the international land and maritime borders of the United States.

(b)

Content

The National Strategy for Border Security shall include the following:

(1)

The implementation schedule for the comprehensive plan for systematic surveillance described in section 111.

(2)

An assessment of the threat posed by terrorists and terrorist groups that may try to infiltrate the United States at locations along the international land and maritime borders of the United States.

(3)

A risk assessment for all United States ports of entry and all portions of the international land and maritime borders of the United States that includes a description of activities being undertaken—

(A)

to prevent the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States; and

(B)

to protect critical infrastructure at or near such ports of entry or borders.

(4)

An assessment of the legal requirements that prevent achieving and maintaining operational control over the entire international land and maritime borders of the United States.

(5)

An assessment of the most appropriate, practical, and cost-effective means of defending the international land and maritime borders of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities.

(6)

An assessment of staffing needs for all border security functions, taking into account threat and vulnerability information pertaining to the borders and the impact of new security programs, policies, and technologies.

(7)

A description of the border security roles and missions of Federal, State, regional, local, and tribal authorities, and recommendations regarding actions the Secretary can carry out to improve coordination with such authorities to enable border security and enforcement activities to be carried out in a more efficient and effective manner.

(8)

An assessment of existing efforts and technologies used for border security and the effect of the use of such efforts and technologies on civil rights, personal property rights, privacy rights, and civil liberties, including an assessment of efforts to take into account asylum seekers, trafficking victims, unaccompanied minor aliens, and other vulnerable populations.

(9)

A prioritized list of research and development objectives to enhance the security of the international land and maritime borders of the United States.

(10)

A description of ways to ensure that the free flow of travel and commerce is not diminished by efforts, activities, and programs aimed at securing the international land and maritime borders of the United States.

(11)

An assessment of additional detention facilities and beds that are needed to detain unlawful aliens apprehended at United States ports of entry or along the international land borders of the United States.

(12)

A description of the performance metrics to be used to ensure accountability by the bureaus of the Department in implementing such Strategy.

(13)

A schedule for the implementation of the security measures described in such Strategy, including a prioritization of security measures, realistic deadlines for addressing the security and enforcement needs, an estimate of the resources needed to carry out such measures, and a description of how such resources should be allocated.

(c)

Consultation

In developing the National Strategy for Border Security, the Secretary shall consult with representatives of—

(1)

State, local, and tribal authorities with responsibility for locations along the international land and maritime borders of the United States; and

(2)

appropriate private sector entities, nongovernmental organizations, and affected communities that have expertise in areas related to border security.

(d)

Coordination

The National Strategy for Border Security shall be consistent with the National Strategy for Maritime Security developed pursuant to Homeland Security Presidential Directive 13, dated December 21, 2004.

(e)

Submission to Congress

(1)

Strategy

Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit to Congress the National Strategy for Border Security.

(2)

Updates

The Secretary shall submit to Congress any update of such Strategy that the Secretary determines is necessary, not later than 30 days after such update is developed.

(f)

Immediate Action

Nothing in this section or section 111 may be construed to relieve the Secretary of the responsibility to take all actions necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.

113.

Reports on improving the exchange of information on North American security

(a)

Requirement for Reports

Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of State, in coordination with the Secretary and the heads of other appropriate Federal agencies, shall submit to Congress a report on improving the exchange of information related to the security of North America.

(b)

Contents

Each report submitted under subsection (a) shall contain a description of the following:

(1)

Security clearances and document integrity

The progress made toward the development of common enrollment, security, technical, and biometric standards for the issuance, authentication, validation, and repudiation of secure documents, including—

(A)

technical and biometric standards based on best practices and consistent with international standards for the issuance, authentication, validation, and repudiation of travel documents, including—

(i)

passports;

(ii)

visas; and

(iii)

permanent resident cards;

(B)

working with Canada and Mexico to encourage foreign governments to enact laws to combat alien smuggling and trafficking, and laws to forbid the use and manufacture of fraudulent travel documents and to promote information sharing;

(C)

applying the necessary pressures and support to ensure that other countries meet proper travel document standards and are committed to travel document verification before the citizens of such countries travel internationally, including travel by such citizens to the United States; and

(D)

providing technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with visa and travel documents.

(2)

Immigration and visa management

The progress of efforts to share information regarding high-risk individuals who may attempt to enter Canada, Mexico, or the United States, including the progress made—

(A)

in implementing the Statement of Mutual Understanding on Information Sharing, signed by Canada and the United States in February 2003; and

(B)

in identifying trends related to immigration fraud, including asylum and document fraud, and to analyze such trends.

(3)

Visa policy coordination and immigration security

The progress made by Canada, Mexico, and the United States to enhance the security of North America by cooperating on visa policy and identifying best practices regarding immigration security, including the progress made—

(A)

in enhancing consultation among officials who issue visas at the consulates or embassies of Canada, Mexico, or the United States throughout the world to share information, trends, and best practices on visa flows;

(B)

in comparing the procedures and policies of Canada and the United States related to visitor visa processing, including—

(i)

application process;

(ii)

interview policy;

(iii)

general screening procedures;

(iv)

visa validity;

(v)

quality control measures; and

(vi)

access to appeal or review;

(C)

in exploring methods for Canada, Mexico, and the United States to waive visa requirements for nationals and citizens of the same foreign countries;

(D)

in providing technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with immigration violators;

(E)

in developing and implementing an immigration security strategy for North America that works toward the development of a common security perimeter by enhancing technical assistance for programs and systems to support advance automated reporting and risk targeting of international passengers;

(F)

in sharing information on lost and stolen passports on a real-time basis among immigration or law enforcement officials of Canada, Mexico, and the United States; and

(G)

in collecting 10 fingerprints from each individual who applies for a visa.

(4)

North american visitor overstay program

The progress made by Canada and the United States in implementing parallel entry-exit tracking systems that, while respecting the privacy laws of both countries, share information regarding third country nationals who have overstayed their period of authorized admission in either Canada or the United States.

(5)

Terrorist watch lists

The progress made in enhancing the capacity of the United States to combat terrorism through the coordination of counterterrorism efforts, including the progress made—

(A)

in developing and implementing bilateral agreements between Canada and the United States and between Mexico and the United States to govern the sharing of terrorist watch list data and to comprehensively enumerate the uses of such data by the governments of each country;

(B)

in establishing appropriate linkages among Canada, Mexico, and the United States Terrorist Screening Center; and

(C)

in exploring with foreign governments the establishment of a multilateral watch list mechanism that would facilitate direct coordination between the country that identifies an individual as an individual included on a watch list, and the country that owns such list, including procedures that satisfy the security concerns and are consistent with the privacy and other laws of each participating country.

(6)

Money laundering, currency smuggling, and alien smuggling

The progress made in improving information sharing and law enforcement cooperation in combating organized crime, including the progress made—

(A)

in combating currency smuggling, money laundering, alien smuggling, and trafficking in alcohol, firearms, and explosives;

(B)

in implementing the agreement between Canada and the United States known as the Firearms Trafficking Action Plan;

(C)

in determining the feasibility of formulating a firearms trafficking action plan between Mexico and the United States;

(D)

in developing a joint threat assessment on organized crime between Canada and the United States;

(E)

in determining the feasibility of formulating a joint threat assessment on organized crime between Mexico and the United States;

(F)

in developing mechanisms to exchange information on findings, seizures, and capture of individuals transporting undeclared currency; and

(G)

in developing and implementing a plan to combat the transnational threat of illegal drug trafficking.

(7)

Law enforcement cooperation

The progress made in enhancing law enforcement cooperation among Canada, Mexico, and the United States through enhanced technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with known and suspected criminals or terrorists, including exploring the formation of law enforcement teams that include personnel from the United States and Mexico, and appropriate procedures for such teams.

114.

Improving the security of Mexico’s southern border

(a)

Technical Assistance

The Secretary of State, in coordination with the Secretary, shall work to cooperate with the head of Foreign Affairs Canada and the appropriate officials of the Government of Mexico to establish a program—

(1)

to assess the specific needs of Guatemala and Belize in maintaining the security of the international borders of such countries;

(2)

to use the assessment made under paragraph (1) to determine the financial and technical support needed by Guatemala and Belize from Canada, Mexico, and the United States to meet such needs;

(3)

to provide technical assistance to Guatemala and Belize to promote issuance of secure passports and travel documents by such countries; and

(4)

to encourage Guatemala and Belize—

(A)

to control alien smuggling and trafficking;

(B)

to prevent the use and manufacture of fraudulent travel documents; and

(C)

to share relevant information with Mexico, Canada, and the United States.

(b)

Border Security for Belize, Guatemala, and Mexico

The Secretary, in consultation with the Secretary of State, shall work to cooperate—

(1)

with the appropriate officials of the Government of Guatemala and the Government of Belize to provide law enforcement assistance to Guatemala and Belize that specifically addresses immigration issues to increase the ability of the Government of Guatemala to dismantle human smuggling organizations and gain additional control over the international border between Guatemala and Belize; and

(2)

with the appropriate officials of the Government of Belize, the Government of Guatemala, the Government of Mexico, and the governments of neighboring contiguous countries to establish a program to provide needed equipment, technical assistance, and vehicles to manage, regulate, and patrol the international borders between Mexico and Guatemala and between Mexico and Belize.

(c)

Tracking Central American Gangs

The Secretary of State, in coordination with the Secretary and the Director of the Federal Bureau of Investigation, shall work to cooperate with the appropriate officials of the Government of Mexico, the Government of Guatemala, the Government of Belize, and the governments of other Central American countries—

(1)

to assess the direct and indirect impact on the United States and Central America of deporting violent criminal aliens;

(2)

to establish a program and database to track individuals involved in Central American gang activities;

(3)

to develop a mechanism that is acceptable to the governments of Belize, Guatemala, Mexico, the United States, and other appropriate countries to notify such a government if an individual suspected of gang activity will be deported to that country prior to the deportation and to provide support for the reintegration of such deportees into that country; and

(4)

to develop an agreement to share all relevant information related to individuals connected with Central American gangs.

(d)

Limitations on Assistance

Any funds made available to carry out this section shall be subject to the limitations contained in section 551 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2006 (Public Law 109–102; 119 Stat. 2218).

115.

Combating human smuggling

(a)

Requirement for Plan

The Secretary shall develop and implement a plan to improve coordination between the Bureau of Immigration and Customs Enforcement and the Bureau of Customs and Border Protection of the Department and any other Federal, State, local, or tribal authorities, as determined appropriate by the Secretary, to improve coordination efforts to combat human smuggling.

(b)

Content

In developing the plan required by subsection (a), the Secretary shall consider—

(1)

the interoperability of databases utilized to prevent human smuggling;

(2)

adequate and effective personnel training;

(3)

methods and programs to effectively target networks that engage in such smuggling;

(4)

effective utilization of—

(A)

visas for victims of trafficking and other crimes; and

(B)

investigatory techniques, equipment, and procedures that prevent, detect, and prosecute international money laundering and other operations that are utilized in smuggling;

(5)

joint measures, with the Secretary of State, to enhance intelligence sharing and cooperation with foreign governments whose citizens are preyed on by human smugglers; and

(6)

other measures that the Secretary considers appropriate to combating human smuggling.

(c)

Report

Not later than 1 year after implementing the plan described in subsection (a), the Secretary shall submit to Congress a report on such plan, including any recommendations for legislative action to improve efforts to combating human smuggling.

(d)

Savings Provision

Nothing in this section may be construed to provide additional authority to any State or local entity to enforce Federal immigration laws.

116.

Deaths at United States-Mexico border

(a)

Collection of Statistics

The Commissioner of the Bureau of Customs and Border Protection shall collect statistics relating to deaths occurring at the border between the United States and Mexico, including—

(1)

the causes of the deaths; and

(2)

the total number of deaths.

(b)

Report

Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Commissioner of the Bureau of Customs and Border Protection shall submit to the Secretary a report that—

(1)

analyzes trends with respect to the statistics collected under subsection (a) during the preceding year; and

(2)

recommends actions to reduce the deaths described in subsection (a).

117.

Cooperation with the Government of Mexico

(a)

Cooperation Regarding Border Security

The Secretary of State, in cooperation with the Secretary and representatives of Federal, State, and local law enforcement agencies that are involved in border security and immigration enforcement efforts, shall work with the appropriate officials from the Government of Mexico to improve coordination between the United States and Mexico regarding—

(1)

improved border security along the international border between the United States and Mexico;

(2)

the reduction of human trafficking and smuggling between the United States and Mexico;

(3)

the reduction of drug trafficking and smuggling between the United States and Mexico;

(4)

the reduction of gang membership in the United States and Mexico;

(5)

the reduction of violence against women in the United States and Mexico; and

(6)

the reduction of other violence and criminal activity.

(b)

Cooperation Regarding Education on Immigration Laws

The Secretary of State, in cooperation with other appropriate Federal officials, shall work with the appropriate officials from the Government of Mexico to carry out activities to educate citizens and nationals of Mexico regarding eligibility for status as a nonimmigrant under Federal law to ensure that the citizens and nationals are not exploited while working in the United States.

(c)

Cooperation Regarding Circular Migration

The Secretary of State, in cooperation with the Secretary of Labor and other appropriate Federal officials, shall work with the appropriate officials from the Government of Mexico to improve coordination between the United States and Mexico to encourage circular migration, including assisting in the development of economic opportunities and providing job training for citizens and nationals in Mexico.

(d)

Consultation Requirement

Federal, State, and local representatives in the United States shall consult with their counterparts in Mexico concerning the construction of additional fencing and related border security structures along the international border between the United States and Mexico, as authorized by this title, before the commencement of any such construction in order to—

(1)

solicit the views of affected communities;

(2)

lessen tensions; and

(3)

foster greater understanding and stronger cooperation on this and other important security issues of mutual concern.

(e)

Annual Report

Not later than 180 days after the date of enactment of this Act, and annually thereafter, the Secretary of State shall submit to Congress a report on the actions taken by the United States and Mexico under this section.

C

Other Border Security Initiatives

121.

Biometric data enhancements

Not later than October 1, 2008, the Secretary shall—

(1)

in consultation with the Attorney General, enhance connectivity between the Automated Biometric Fingerprint Identification System (IDENT) of the Department and the Integrated Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of Investigation to ensure more expeditious data searches; and

(2)

in consultation with the Secretary of State, collect all fingerprints from each alien required to provide fingerprints during the alien’s initial enrollment in the integrated entry and exit data system described in section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a).

122.

Secure communication

The Secretary shall, as expeditiously as practicable, develop and implement a plan to improve the use of satellite communications and other technologies to ensure clear and secure 2-way communication capabilities—

(1)

among all Border Patrol agents conducting operations between ports of entry;

(2)

between Border Patrol agents and their respective Border Patrol stations;

(3)

between Border Patrol agents and residents in remote areas along the international land borders of the United States; and

(4)

between all appropriate border security agencies of the Department and State, local, and tribal law enforcement agencies.

123.

Border Patrol training capacity review

(a)

In General

The Comptroller General of the United States shall conduct a review of the basic training provided to Border Patrol agents by the Secretary to ensure that such training is provided as efficiently and cost-effectively as possible.

(b)

Components of Review

The review under subsection (a) shall include the following components:

(1)

An evaluation of the length and content of the basic training curriculum provided to new Border Patrol agents by the Federal Law Enforcement Training Center, including a description of how such curriculum has changed since September 11, 2001, and an evaluation of language and cultural diversity training programs provided within such curriculum.

(2)

A review and a detailed breakdown of the costs incurred by the Bureau of Customs and Border Protection and the Federal Law Enforcement Training Center to train 1 new Border Patrol agent.

(3)

A comparison, based on the review and breakdown under paragraph (2), of the costs, effectiveness, scope, and quality, including geographic characteristics, with other similar training programs provided by State and local agencies, nonprofit organizations, universities, and the private sector.

(4)

An evaluation of whether utilizing comparable non-Federal training programs, proficiency testing, and long-distance learning programs may affect—

(A)

the cost-effectiveness of increasing the number of Border Patrol agents trained per year;

(B)

the per agent costs of basic training; and

(C)

the scope and quality of basic training needed to fulfill the mission and duties of a Border Patrol agent.

124.

US–VISIT System

Not later than 6 months after the date of the enactment of this Act, the Secretary, in consultation with the heads of other appropriate Federal agencies, shall submit to Congress a schedule for—

(1)

equipping all land border ports of entry of the United States with the U.S.-Visitor and Immigrant Status Indicator Technology (US–VISIT) system implemented under section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a);

(2)

developing and deploying at such ports of entry the exit component of the US–VISIT system; and

(3)

making interoperable all immigration screening systems operated by the Secretary.

125.

Document fraud detection

(a)

Training

Subject to the availability of appropriations, the Secretary 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 head of the Forensic Document Laboratory of the Bureau of Immigration and Customs Enforcement.

(b)

Forensic Document Laboratory

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

(c)

Assessment

(1)

Requirement for assessment

The Inspector General of the Department shall conduct an independent assessment of the accuracy and reliability of the Forensic Document Laboratory.

(2)

Report to congress

Not later than 6 months after the date of the enactment of this Act, the Inspector General shall submit to Congress the findings of the assessment required by paragraph (1).

(d)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.

126.

Improved document integrity

(a)

In General

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

(1)

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

(2)

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

(3)

in subsection (b)(1)—

(A)

by striking Not later than October 26, 2004, the and inserting The; and

(B)

by striking visas and both places it appears and inserting visas, evidence of status, and;

(4)

by redesignating subsection (d) as subsection (e); and

(5)

by inserting after subsection (c) the following:

(d)

Other Documents

Not later than October 26, 2008, every document, other than an interim document, issued by the Secretary of Homeland Security, which may be used as evidence of an alien’s status as an immigrant, nonimmigrant, parolee, asylee, or refugee, shall be machine-readable and tamper-resistant, and shall incorporate a biometric identifier to allow the Secretary of Homeland Security to verify electronically the identity and status of the alien.

.

127.

Cancellation of visas

Section 222(g) (8 U.S.C. 1202(g)) is amended—

(1)

in paragraph (1)—

(A)

by striking Attorney General and inserting Secretary of Homeland Security; and

(B)

by inserting and any other nonimmigrant visa issued by the United States that is in the possession of the alien after such visa; and

(2)

in paragraph (2)(A), by striking (other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien’s nationality and inserting (other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien’s nationality or foreign residence.

128.

Biometric entry-exit system

(a)

Collection of Biometric Data From Aliens Departing the United States

Section 215 (8 U.S.C. 1185) is amended—

(1)

by redesignating subsection (c) as subsection (g);

(2)

by moving subsection (g), as redesignated by paragraph (1), to the end; and

(3)

by inserting after subsection (b) the following:

(c)

The Secretary of Homeland Security is authorized to require aliens departing the United States to provide biometric data and other information relating to their immigration status.

.

(b)

Inspection of Applicants for Admission

Section 235(d) (8 U.S.C. 1225(d)) is amended by adding at the end the following:

(5)

Authority to collect biometric data

In conducting inspections under subsection (b), immigration officers are authorized to collect biometric data from—

(A)

any applicant for admission or alien seeking to transit through the United States; or

(B)

any lawful permanent resident who is entering the United States and who is not regarded as seeking admission pursuant to section 101(a)(13)(C).

.

(c)

Collection of Biometric Data From Alien Crewmen

Section 252 (8 U.S.C. 1282) is amended by adding at the end the following:

(d)

An immigration officer is authorized to collect biometric data from an alien crewman seeking permission to land temporarily in the United States.

.

(d)

Grounds of Inadmissibility

Section 212 (8 U.S.C. 1182) is amended—

(1)

in subsection (a)(7), by adding at the end the following:

(C)

Withholders of biometric data

Any alien who knowingly fails to comply with a lawful request for biometric data under section 215(c) or 235(d) is inadmissible.

; and

(2)

in subsection (d), by inserting after paragraph (1) the following:

(2)

The Secretary of Homeland Security shall determine whether a ground for inadmissibility exists with respect to an alien described in subparagraph (C) of subsection (a)(7) and may waive the application of such subparagraph for an individual alien or a class of aliens, at the discretion of the Secretary.

.

(e)

Implementation

Section 7208 of the 9/11 Commission Implementation Act of 2004 (8 U.S.C. 1365b) is amended—

(1)

in subsection (c), by adding at the end the following:

(3)

Implementation

In fully implementing the automated biometric entry and exit data system under this section, the Secretary is not required to comply with the requirements of chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedure Act) or any other law relating to rulemaking, information collection, or publication in the Federal Register.

; and

(2)

in subsection (l)—

(A)

by striking There are authorized and inserting the following:

(1)

In general

There are authorized

; and

(B)

by adding at the end the following:

(2)

Implementation at all land border ports of entry

There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2008 and 2009 to implement the automated biometric entry and exit data system at all land border ports of entry.

.

129.

Border study

(a)

Southern Border Study

The Secretary, in consultation with the Attorney General, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, the Secretary of Commerce, and the Administrator of the Environmental Protection Agency, shall conduct a study on the construction of a system of physical barriers along the southern international land and maritime border of the United States. The study shall include—

(1)

an assessment of the necessity of constructing such a system, including the identification of areas of high priority for the construction of such a system determined after consideration of factors including the amount of narcotics trafficking and the number of illegal immigrants apprehended in such areas;

(2)

an assessment of the feasibility of constructing such a system;

(3)

an assessment of the international, national, and regional environmental impact of such a system, including the impact on zoning, global climate change, ozone depletion, biodiversity loss, and transboundary pollution;

(4)

an assessment of the necessity for ports of entry along such a system;

(5)

an assessment of the impact such a system would have on international trade, commerce, and tourism;

(6)

an assessment of the effect of such a system on private property rights including issues of eminent domain and riparian rights;

(7)

an estimate of the costs associated with building a barrier system, including costs associated with excavation, construction, and maintenance;

(8)

an assessment of the effect of such a system on Indian reservations and units of the National Park System;

(9)

an assessment of the necessity of constructing such a system after the implementation of provisions of this Act relating to guest workers, visa reform, and interior and worksite enforcement, and the likely effect of such provisions on undocumented immigration and the flow of illegal immigrants across the international border of the United States;

(10)

an assessment of the impact of such a system on diplomatic relations between the United States and Mexico, Central America, and South America, including the likely impact of such a system on existing and potential areas of bilateral and multilateral cooperative enforcement efforts;

(11)

an assessment of the impact of such a system on the quality of life within border communities in the United States and Mexico, including its impact on noise and light pollution, housing, transportation, security, and environmental health;

(12)

an assessment of the likelihood that such a system would lead to increased violations of the human rights, health, safety, or civil rights of individuals in the region near the southern international border of the United States, regardless of the immigration status of such individuals;

(13)

an assessment of the effect such a system would have on violence near the southern international border of the United States; and

(14)

an assessment of the effect of such a system on the vulnerability of the United States to infiltration by terrorists or other agents intending to inflict direct harm on the United States.

(b)

Report

Not later than 9 months after the date of the enactment of this Act, the Secretary shall submit to Congress a report on the study described in subsection (a).

130.

Secure Border Initiative financial accountability

(a)

In General

The Inspector General of the Department shall review each contract action relating to the Secure Border Initiative having a value of more than $20,000,000, to determine whether each such action fully complies with applicable cost requirements, performance objectives, program milestones, inclusion of small, minority, and women-owned business, and time lines. The Inspector General shall complete a review under this subsection with respect to each contract action—

(1)

not later than 60 days after the date of the initiation of the action; and

(2)

upon the conclusion of the performance of the contract.

(b)

Inspector General

(1)

Action

If the Inspector General becomes aware of any improper conduct or wrongdoing in the course of conducting a contract review under subsection (a), the Inspector General shall, as expeditiously as practicable, refer information relating to such improper conduct or wrongdoing to the Secretary, or to another appropriate official of the Department, who shall determine whether to temporarily suspend the contractor from further participation in the Secure Border Initiative.

(2)

Report

Upon the completion of each review described in subsection (a), the Inspector General shall submit to the Secretary a report containing the findings of the review, including findings regarding—

(A)

cost overruns;

(B)

significant delays in contract execution;

(C)

lack of rigorous departmental contract management;

(D)

insufficient departmental financial oversight;

(E)

bundling that limits the ability of small businesses to compete; or

(F)

other high risk business practices.

(c)

Reports by the Secretary

(1)

In general

Not later than 30 days after the receipt of each report required under subsection (b)(2), the Secretary shall submit a report, to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, that describes—

(A)

the findings of the report received from the Inspector General; and

(B)

the steps the Secretary has taken, or plans to take, to address the problems identified in such report.

(2)

Contracts with foreign companies

Not later than 60 days after the initiation of each contract action with a company whose headquarters is not based in the United States, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, regarding the Secure Border Initiative.

(d)

Reports on United States ports

Not later than 30 days after receiving information regarding a proposed purchase of a contract to manage the operations of a United States port by a foreign entity, the Committee on Foreign Investment in the United States shall submit a report to Congress that describes—

(1)

the proposed purchase;

(2)

any security concerns related to the proposed purchase; and

(3)

the manner in which such security concerns have been addressed.

(e)

Authorization of appropriations

In addition to amounts that are otherwise authorized to be appropriated to the Office of the Inspector General of the Department, there are authorized to be appropriated to the Office, to enable the Office to carry out this section—

(1)

for fiscal year 2008, not less than 5 percent of the overall budget of the Office for such fiscal year;

(2)

for fiscal year 2009, not less than 6 percent of the overall budget of the Office for such fiscal year; and

(3)

for fiscal year 2010, not less than 7 percent of the overall budget of the Office for such fiscal year.

131.

Mandatory detention for aliens apprehended at or between ports of entry

(a)

In General

Beginning on October 1, 2008, an alien (other than a national of Mexico) who is attempting to illegally enter the United States and who is apprehended at a United States port of entry or along the international land and maritime border of the United States shall be detained until removed or a final decision granting admission has been determined, unless the alien—

(1)

is permitted to withdraw an application for admission under section 235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)) and immediately departs from the United States pursuant to such section; or

(2)

is paroled into the United States by the Secretary for urgent humanitarian reasons or significant public benefit in accordance with section 212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).

(b)

Requirements During Interim Period

Beginning 60 days after the date of the enactment of this Act and before October 1, 2008, an alien described in subsection (a) may be released with a notice to appear only if—

(1)

the Secretary determines, after conducting all appropriate background and security checks on the alien, that the alien does not pose a national security risk; and

(2)

the alien provides a bond of not less than $5,000.

(c)

Rules of Construction

(1)

Asylum and removal

Nothing in this section shall be construed as limiting the right of an alien to apply for asylum or for relief or deferral of removal based on a fear of persecution.

(2)

Treatment of certain aliens

The mandatory detention requirement in subsection (a) does not apply to any alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations.

(3)

Discretion

Nothing in this section shall be construed as limiting the authority of the Secretary, in the Secretary’s sole unreviewable discretion, to determine whether an alien described in clause (ii) of section 235(b)(1)(B) of the Immigration and Nationality Act shall be detained or released after a finding of a credible fear of persecution (as defined in clause (v) of such section).

132.

Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements

(a)

In General

Chapter 27 of title 18, United States Code, is amended by adding at the end the following:

556.

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

(a)

Prohibition

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

(b)

Penalties

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

(1)

fined under this title;

(2)
(A)

imprisoned for not more than 3 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)

Conspiracy

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)

Prima Facie Evidence

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.

.

(b)

Conforming Amendment

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

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

.

(c)

Failure To Obey Border Enforcement Officers

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

(c)

Failure To Obey Lawful Orders of Border Enforcement Officers

Whoever willfully disregards or disobeys the lawful authority or command 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.

.

(d)

Technical amendments

(1)

In general

Chapter 27 of title 18, United States Code, is amended by redesignating section 554 (as added by section 551(a) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1389)) as section 555.

(2)

Table of sections

The table of sections for chapter 27 of title 18, United States Code, is amended—

(A)

by striking the following:

Sec. 554. Border tunnels and passages.

;

and
(B)

by inserting the following:

Sec. 555. Border tunnels and passages.

.

(3)

Criminal forfeiture

Section 982(a)(6) of title 18, United States Code, is amended by striking 554 and inserting 555.

(4)

Directive to united states sentencing commission

Paragraphs (1) and (2)(A) of section 551(d) of the Department of Homeland Security Appropriations Act, 2007 is amended by striking 554 and inserting 555.

133.

Temporary National Guard support for securing the southern land border of the United States

(a)

Authority To Provide Assistance

(1)

In general

With the approval of the Secretary of Defense, the Governor of a State may order any units or personnel of the National Guard of such State to perform annual training duty under section 502(a) of title 32, United States Code, to carry out in any State along the southern land border of the United States the activities authorized in subsection (b), for the purpose of securing such border. Such duty shall not exceed 21 days in any year.

(2)

Support

With the approval of the Secretary of Defense, the Governor of a State may order any units or personnel of the National Guard of such State to perform duty under section 502(f) of title 32, United States Code, to provide command, control, and continuity of support for units or personnel performing annual training duty under paragraph (1).

(b)

Authorized Activities

The activities authorized by this subsection are any of the following:

(1)

Ground reconnaissance activities;

(2)

Airborne reconnaissance activities;

(3)

Logistical support;

(4)

Provision of translation services and training;

(5)

Administrative support services;

(6)

Technical training services;

(7)

Emergency medical assistance and services;

(8)

Communications services;

(9)

Rescue of aliens in peril;

(10)

Construction of roadways, patrol roads, fences, barriers, and other facilities to secure the southern land border of the United States; and

(11)

Ground and air transportation.

(c)

Cooperative Agreements

Units and personnel of the National Guard of a State may perform activities in another State under subsection (a) only pursuant to the terms of an emergency management assistance compact or other cooperative arrangement entered into between Governors of such States for purposes of this section, and only with the approval of the Secretary of Defense.

(d)

Coordination of Assistance

The Secretary of Homeland Security shall, in consultation with the Secretary of Defense and the Governors of the States concerned, coordinate the performance of activities under this section by units and personnel of the National Guard.

(e)

Annual Training

Annual training duty performed by members of the National Guard under subsection (a) shall be appropriate for the units and individual members concerned, taking into account the types of units and military occupational specialties of individual members performing such duty.

(f)

Definitions

In this section:

(1)

The term Governor of a State means, in the case of the District of Columbia, the Commanding General of the National Guard of the District of Columbia.

(2)

The term State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(3)

The term State along the southern border of the United States means each of the following:

(A)

The State of Arizona.

(B)

The State of California.

(C)

The State of New Mexico.

(D)

The State of Texas.

(g)

Duration of Authority

The authority of this section shall expire on January 1, 2009.

(h)

Prohibition on Direct Participation in Law Enforcement

Activities carried out under the authority of this section shall not include the direct participation of a member of the National Guard in a search, seizure, arrest, or similar activity.

134.

Report on incentives to encourage certain members and former members of the Armed Forces to serve in United States Customs and Border Protection

(a)

Report Required

Not later than 60 days after the date of the enactment of this Act, the Secretary of Homeland Security and the Secretary of Defense shall jointly submit to the appropriate committees of Congress a report assessing the desirability and feasibility of offering incentives to covered members and former members of the Armed Forces for the purpose of encouraging such members to serve in the Bureau of Customs and Border Protection.

(b)

Covered Members and Former Members of the Armed Forces

For purposes of this section, covered members and former members of the Armed Forces are the following:

(1)

Members of the reserve components of the Armed Forces.

(2)

Former members of the Armed Forces within two years of separation from service in the Armed Forces.

(c)

Requirements and Limitations

(1)

Nature of incentives

In considering incentives for purposes of the report required by subsection (a), the Secretaries shall consider such incentives, whether monetary or otherwise and whether or not authorized by current law or regulations, as the Secretaries jointly consider appropriate.

(2)

Targeting of incentives

In assessing any incentive for purposes of the report, the Secretaries shall give particular attention to the utility of such incentive in—

(A)

encouraging service in the Bureau of Customs and Border Protection after service in the Armed Forces by covered members and former of the Armed Forces who have provided border patrol or border security assistance to the Bureau as part of their duties as members of the Armed Forces; and

(B)

leveraging military training and experience by accelerating training, or allowing credit to be applied to related areas of training, required for service with the Bureau of Customs and Border Protection.

(3)

Payment

In assessing incentives for purposes of the report, the Secretaries shall assume that any costs of such incentives shall be borne by the Department of Homeland Security.

(d)

Elements

The report required by subsection (a) shall include the following:

(1)

A description of various monetary and non-monetary incentives considered for purposes of the report.

(2)

An assessment of the desirability and feasibility of utilizing any such incentive for the purpose specified in subsection (a), including an assessment of the particular utility of such incentive in encouraging service in the Bureau of Customs and Border Protection after service in the Armed Forces by covered members and former members of the Armed Forces described in subsection (c)(2).

(3)

Any other matters that the Secretaries jointly consider appropriate.

(e)

Appropriate Committees of Congress Defined

In this section, the term appropriate committees of Congress means—

(1)

the Committees on Armed Services, Homeland Security and Governmental Affairs, and Appropriations of the Senate; and

(2)

the Committees on Armed Services, Homeland Security, and Appropriations of the House of Representatives.

135.

Western Hemisphere Travel Initiative

(a)

Findings

Congress makes the following findings:

(1)

United States citizens make approximately 130,000,000 land border crossings each year between the United States and Canada and the United States and Mexico, with approximately 23,000,000 individual United States citizens crossing the border annually.

(2)

Approximately 27 percent of United States citizens possess United States passports.

(3)

In fiscal year 2005, the Secretary of State issued an estimated 10,100,000 passports, representing an increase of 15 percent from fiscal year 2004.

(4)

The Secretary of State estimates that 16,000,000 passports will be issued in fiscal year 2007 and 17,000,000 passports will be issued in fiscal year 2008.

(b)

Extension of Western Hemisphere Travel Initiative Implementation Deadline

Section 7209(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185 note) is amended by striking January 1, 2008 and inserting the later of June 1, 2009, or 3 months after the Secretary of State and the Secretary of Homeland Security make the certification required in subsection (i) of section 133 of the Comprehensive Immigration Reform Act of 2007..

(c)

Passport Cards

(1)

Authority to issue

In order to facilitate travel of United States citizens to Canada, Mexico, the countries located in the Caribbean, and Bermuda, the Secretary of State, in consultation with the Secretary, is authorized to develop a travel document known as a Passport Card.

(2)

Issuance

In accordance with the Western Hemisphere Travel Initiative carried out pursuant to section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185 note), the Secretary of State, in consultation with the Secretary, shall be authorized to issue to a citizen of the United States who submits an application in accordance with paragraph (5) a travel document that will serve as a Passport Card.

(3)

Applicability

A Passport Card shall be deemed to be a United States passport for the purpose of United States laws and regulations relating to United States passports.

(4)

Validity

A Passport Card shall be valid for the same period as a United States passport.

(5)

Limitation on use

A Passport Card may only be used for the purpose of international travel by United States citizens through land and sea ports of entry between—

(A)

the United States and Canada;

(B)

the United States and Mexico; and

(C)

the United States and a country located in the Caribbean or Bermuda.

(6)

Application for issuance

To be issued a Passport Card, a United States citizen shall submit an application to the Secretary of State. The Secretary of State shall require that such application shall contain the same information as is required to determine citizenship, identity, and eligibility for issuance of a United States passport.

(7)

Technology

(A)

Expedited traveler programs

To the maximum extent practicable, a Passport Card shall be designed and produced to provide a platform on which the expedited traveler programs carried out by the Secretary, such as NEXUS, NEXUS AIR, SENTRI, FAST, and Register Traveler may be added. The Secretary of State and the Secretary shall notify Congress not later than July 1, 2007, if the technology to add expedited travel features to the Passport Card is not developed by that date.

(B)

Technology

The Secretary and the Secretary of State shall establish a technology implementation plan that accommodates desired technology requirements of the Department of State and the Department, allows for future technological innovations, and ensures maximum facilitation at the northern and southern borders.

(8)

Specifications for card

A Passport Card shall be easily portable and durable. The Secretary of State and the Secretary shall consult regarding the other technical specifications of the Card, including whether the security features of the Card could be combined with other existing identity documentation.

(9)

Fee

(A)

In general

An applicant for a Passport Card shall submit an application under paragraph (6) together with a nonrefundable fee in an amount to be determined by the Secretary of State. Passport Card fees shall be deposited as an offsetting collection to the appropriate Department of State appropriation, to remain available until expended.

(B)

Limitation on fees

(i)

In general

The Secretary of State shall seek to make the application fee under this paragraph as low as possible.

(ii)

Maximum fee without certification

Except as provided in clause (iii), the application fee may not exceed $24.

(iii)

Maximum fee with certification

The application fee may be not more than $34 if the Secretary of State, the Secretary, and the Postmaster General—

(I)

jointly certify to Congress that the cost to produce and issue a Passport Card significantly exceeds $24; and

(II)

provide a detailed cost analysis for such fee.

(C)

Reduction of fee

The Secretary of State shall reduce the fee for a Passport Card for an individual who submits an application for a Passport Card together with an application for a United States passport.

(D)

Waiver of fee for children

The Secretary of State shall waive the fee for a Passport Card for a child under 18 years of age.

(E)

Audit

In the event that the fee for a Passport Card exceeds $24, the Comptroller General of the United States shall conduct an audit to determine whether Passport Cards are issued at the lowest possible cost.

(10)

Accessibility

In order to make the Passport Card easily obtainable, an application for a Passport Card shall be accepted in the same manner and at the same locations as an application for a United States passport.

(11)

Rule of construction

Nothing in this section shall be construed as limiting, altering, modifying, or otherwise affecting the validity of a United States passport. A United States citizen may possess a United States passport and a Passport Card.

(d)

State Enrollment Demonstration Program

(1)

In general

Notwithstanding any other provisions of law, the Secretary of State and the Secretary shall enter into a memorandum of understanding with 1 or more appropriate States to carry out at least 1 demonstration program as follows:

(A)

A State may include an individual’s United States citizenship status on a driver’s license which meets the requirements of section 202 of the REAL ID Act of 2005 (division B of Public Law 109–13; 49 U.S.C. 30301 note).

(B)

The Secretary of State shall develop a mechanism to communicate with a participating State to verify the United States citizenship status of an applicant who voluntarily seeks to have the applicant’s United States citizenship status included on a driver’s license.

(C)

All information collected about the individual shall be managed exclusively in the same manner as information collected through a passport application and no further distribution of such information shall be permitted.

(D)

A State may not require an individual to include the individual’s citizenship status on a driver’s license.

(E)

Notwithstanding any other provision of law, a driver’s license which meets the requirements of this paragraph shall be deemed to be sufficient documentation to permit the bearer to enter the United States from Canada or Mexico through not less than at least 1 designated international border crossing in each State participating in the demonstration program.

(2)

Rule of construction

Nothing in this subsection shall have the effect of creating a national identity card.

(3)

Authority to expand

The Secretary of State and the Secretary may expand the demonstration program under this subsection so that such program is carried out in additional States, through additional ports of entry, for additional foreign countries, and in a manner that permits the use of additional types of identification documents to prove identity under the program.

(4)

Study

Not later than 6 months after the date that the demonstration program under this subsection is carried out, the Comptroller General of the United States shall conduct a study of—

(A)

the cost of the production and issuance of documents that meet the requirements of the program compared with other travel documents;

(B)

the impact of the program on the flow of cross-border traffic and the economic impact of the program; and

(C)

the security of travel documents that meet the requirements of the program compared with other travel documents.

(5)

Reciprocity with canada

Notwithstanding any other provision of law, if the Secretary of State and the Secretary certify that certain identity documents issued by Canada (or any of its provinces) meet security and citizenship standards comparable to the requirements described in paragraph (1), the Secretary may determine that such documents are sufficient to permit entry into the United States. The Secretary shall work, to the maximum extent possible, to ensure that identification documents issued by Canada that are used as described in this paragraph contain the same technology as identification documents issued by the United States (or any State).

(6)

Additional pilot programs

To the maximum extent possible, the Secretary shall seek to conduct pilot programs related to Passport Cards and the State Enrollment Demonstration Program described in this subsection on the international border between the United States and Canada and the international border between the United States and Mexico.

(e)

Expedited Processing for Repeat Travelers

(1)

Land crossings

To the maximum extent practicable at the United States border with Canada and the United States border with Mexico, the Secretary shall expand expedited traveler programs carried out by the Secretary to all ports of entry and should encourage citizens of the United States to participate in the preenrollment programs, as such programs assist border control officers of the United States in the fight against terrorism by increasing the number of known travelers crossing the border. The identities of such expedited travelers should be entered into a database of known travelers who have been subjected to in-depth background and watch-list checks to permit border control officers to focus more attention on unknown travelers, potential criminals, and terrorists. The Secretary, in consultation with the appropriate officials of the Government of Canada, shall equip at least 6 additional northern border crossings with NEXUS technology and 6 additional southern ports of entry with SENTRI technology.

(2)

Sea crossings

The Commissioner of Customs and Border Patrol shall conduct and expand trusted traveler programs and pilot programs to facilitate expedited processing of United States citizens returning from pleasure craft trips in Canada, Mexico, the Caribbean, or Bermuda. One such program shall be conducted in Florida and modeled on the I–68 program.

(f)

Process for Individuals Lacking Appropriate Documents

(1)

In general

The Secretary shall establish a program that satisfies section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185 note)—

(A)

to permit a citizen of the United States who has not been issued a United States passport or other appropriate travel document to cross the international border and return to the United States for a time period of not more than 72 hours, on a limited basis, and at no additional fee; or

(B)

to establish a process to ascertain the identity of, and make admissibility determinations for, a citizen described in paragraph (A) upon the arrival of such citizen at an international border of the United States.

(2)

Grace period

During a time period determined by the Secretary, officers of the United States Customs and Border Patrol may permit citizens of the United States and Canada who are unaware of the requirements of section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185 note), or otherwise lacking appropriate documentation, to enter the United States upon a demonstration of citizenship satisfactory to the officer. Officers of the United States Customs and Border Patrol shall educate such individuals about documentary requirements.

(g)

Travel by Children

Notwithstanding any other provision of law, the Secretary shall develop a procedure to accommodate groups of children traveling by land across an international border under adult supervision with parental consent without requiring a government-issued identity and citizenship document.

(h)

Public Promotion

The Secretary of State, in consultation with the Secretary, shall develop and implement an outreach plan to inform United States citizens about the Western Hemisphere Travel Initiative and the provisions of this Act, to facilitate the acquisition of appropriate documentation to travel to Canada, Mexico, the countries located in the Caribbean, and Bermuda, and to educate United States citizens who are unaware of the requirements for such travel. Such outreach plan should include—

(1)

written notifications posted at or near public facilities, including border crossings, schools, libraries, Amtrak stations, and United States Post Offices located within 50 miles of the international border between the United States and Canada or the international border between the United States and Mexico and other ports of entry;

(2)

provisions to seek consent to post such notifications on commercial property, such as offices of State departments of motor vehicles, gas stations, supermarkets, convenience stores, hotels, and travel agencies;

(3)

the collection and analysis of data to measure the success of the public promotion plan; and

(4)

additional measures as appropriate.

(i)

Certification

Notwithstanding any other provision of law, the Secretary may not implement the plan described in section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185 note) until the later of June 1, 2009, or the date that is 3 months after the Secretary of State and the Secretary certify to Congress that—

(1)
(A)

if the Secretary and the Secretary of State develop and issue Passport Cards under this section—

(i)

such cards have been distributed to at least 90 percent of the eligible United States citizens who applied for such cards during the 6-month period beginning not earlier than the date the Secretary of State began accepting applications for such cards and ending not earlier than 10 days prior to the date of certification;

(ii)

Passport Cards are provided to applicants, on average, within 4 weeks of application or within the same period of time required to adjudicate a passport; and

(iii)

a successful pilot has demonstrated the effectiveness of the Passport Card; or

(B)

if the Secretary and the Secretary of State do not develop and issue Passport Cards under this section and develop a program to issue an alternative document that satisfies the requirements of section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004, in addition to the NEXUS, SENTRI, FAST and Border Crossing Card programs, such alternative document is widely available and well publicized;

(2)

United States border crossings have been equipped with sufficient document readers and other technologies to ensure that implementation will not substantially slow the flow of traffic and persons across international borders;

(3)

officers of the Bureau of Customs and Border Protection have received training and been provided the infrastructure necessary to accept Passport Cards and all alternative identity documents at all United States border crossings; and

(4)

the outreach plan described in subsection (g) has been implemented and the Secretary determines such plan has been successful in providing information to United States citizens.

(j)

Authorization of Appropriations

There is authorized to be appropriated to the Secretary of State and the Secretary such sums as may be necessary to carry out this section, and the amendment made by this section.

D

Border Law Enforcement Relief Act

141.

Short title

This subtitle may be cited as the Border Law Enforcement Relief Act of 2007.

142.

Findings

Congress finds the following:

(1)

It is the obligation of the Federal Government of the United States to adequately secure the Nation’s borders and prevent the flow of undocumented persons and illegal drugs into the United States.

(2)

Despite the fact that the United States Border Patrol apprehends over 1,000,000 people each year trying to illegally enter the United States, according to the Congressional Research Service, the net growth in the number of unauthorized aliens has increased by approximately 500,000 each year. The Southwest border accounts for approximately 94 percent of all migrant apprehensions each year. Currently, there are an estimated 11,000,000 unauthorized aliens in the United States.

(3)

The border region is also a major corridor for the shipment of drugs. According to the El Paso Intelligence Center, 65 percent of the narcotics that are sold in the markets of the United States enter the country through the Southwest Border.

(4)

Border communities continue to incur significant costs due to the lack of adequate border security. A 2001 study by the United States-Mexico Border Counties Coalition found that law enforcement and criminal justice expenses associated with illegal immigration exceed $89,000,000 annually for the Southwest border counties.

(5)

In August 2005, the States of New Mexico and Arizona declared states of emergency in order to provide local law enforcement immediate assistance in addressing criminal activity along the Southwest border.

(6)

While the Federal Government provides States and localities assistance in covering costs related to the detention of certain criminal aliens and the prosecution of Federal drug cases, local law enforcement along the border are provided no assistance in covering such expenses and must use their limited resources to combat drug trafficking, human smuggling, kidnappings, the destruction of private property, and other border-related crimes.

(7)

The United States shares 5,525 miles of border with Canada and 1,989 miles with Mexico. Many of the local law enforcement agencies located along the border are small, rural departments charged with patrolling large areas of land. Counties along the Southwest United States-Mexico border are some of the poorest in the country and lack the financial resources to cover the additional costs associated with illegal immigration, drug trafficking, and other border-related crimes.

(8)

Federal assistance is required to help local law enforcement operating along the border address the unique challenges that arise as a result of their proximity to an international border and the lack of overall border security in the region

143.

Border relief grant program

(a)

Grants Authorized

(1)

In general

The Secretary is authorized to award grants, subject to the availability of appropriations, to an eligible law enforcement agency to provide assistance to such agency to address—

(A)

criminal activity that occurs in the jurisdiction of such agency by virtue of such agency’s proximity to the United States border; and

(B)

the impact of any lack of security along the United States border.

(2)

Duration

Grants may be awarded under this subsection during fiscal years 2008 through 2012.

(3)

Competitive basis

The Secretary shall award grants under this subsection on a competitive basis, except that the Secretary shall give priority to applications from any eligible law enforcement agency serving a community—

(A)

with a population of less than 50,000; and

(B)

located no more than 100 miles from a United States border with—

(i)

Canada; or

(ii)

Mexico.

(b)

Use of Funds

Grants awarded pursuant to subsection (a) may only be used to provide additional resources for an eligible law enforcement agency to address criminal activity occurring along any such border, including—

(1)

to obtain equipment;

(2)

to hire additional personnel;

(3)

to upgrade and maintain law enforcement technology;

(4)

to cover operational costs, including overtime and transportation costs; and

(5)

such other resources as are available to assist that agency.

(c)

Application

(1)

In general

Each eligible law enforcement agency seeking a grant under this section shall submit an application to the Secretary at such time, in such manner, and accompanied by such information as the Secretary may reasonably require.

(2)

Contents

Each application submitted pursuant to paragraph (1) shall—

(A)

describe the activities for which assistance under this section is sought; and

(B)

provide such additional assurances as the Secretary determines to be essential to ensure compliance with the requirements of this section.

(d)

Definitions

For the purposes of this section:

(1)

Eligible law enforcement agency

The term eligible law enforcement agency means a tribal, State, or local law enforcement agency—

(A)

located in a county no more than 100 miles from a United States border with—

(i)

Canada; or

(ii)

Mexico; or

(B)

located in a county more than 100 miles from any such border, but where such county has been certified by the Secretary as a High Impact Area.

(2)

High impact area

The term High Impact Area means any county designated by the Secretary as such, taking into consideration—

(A)

whether local law enforcement agencies in that county have the resources to protect the lives, property, safety, or welfare of the residents of that county;

(B)

the relationship between any lack of security along the United States border and the rise, if any, of criminal activity in that county; and

(C)

any other unique challenges that local law enforcement face due to a lack of security along the United States border.

(e)

Authorization of Appropriations

(1)

In general

There are authorized to be appropriated $50,000,000 for each of fiscal years 2008 through 2012 to carry out the provisions of this section.

(2)

Division of authorized funds

Of the amounts authorized under paragraph (1)—

(A)

2/3 shall be set aside for eligible law enforcement agencies located in the 6 States with the largest number of undocumented alien apprehensions; and

(B)

1/3 shall be set aside for areas designated as a High Impact Area under subsection (d).

(f)

Supplement Not Supplant

Amounts appropriated for grants under this section shall be used to supplement and not supplant other State and local public funds obligated for the purposes provided under this title.

144.

Enforcement of Federal immigration law

Nothing in this subtitle shall be construed to authorize State or local law enforcement agencies or their officers to exercise Federal immigration law enforcement authority.

E

Rapid Response Measures

151.

Deployment of Border Patrol agents

(a)

Emergency Deployment of Border Patrol Agents

(1)

In general

If the Governor of a State on an international border of the United States declares an international border security emergency and requests additional United States Border Patrol agents (referred to in this subtitle as agents) from the Secretary, the Secretary, subject to paragraphs (1) and (2), may provide the State with not more than 1,000 additional agents for the purpose of patrolling and defending the international border, in order to prevent individuals from crossing the international border into the United States at any location other than an authorized port of entry.

(2)

Consultation

Upon receiving a request for agents under paragraph (1), the Secretary, after consultation with the President, shall grant such request to the extent that providing such agents will not significantly impair the Department’s ability to provide border security for any other State.

(3)

Collective bargaining

Emergency deployments under this subsection shall be made in accordance with all applicable collective bargaining agreements and obligations.

(b)

Elimination of Fixed Deployment of Border Patrol Agents

The Secretary shall ensure that agents are not precluded from performing patrol duties and apprehending violators of law, except in unusual circumstances if the temporary use of fixed deployment positions is necessary.

(c)

Increase in Full-Time Border Patrol Agents

Section 5202(a)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (118 Stat. 3734), as amended by section 101(b)(2), is further amended by striking 2,000 and inserting 3,000.

152.

Border Patrol major assets

(a)

Control of Border Patrol Assets

The United States Border Patrol shall have complete and exclusive administrative and operational control over all the assets utilized in carrying out its mission, including, aircraft, watercraft, vehicles, detention space, transportation, and all of the personnel associated with such assets.

(b)

Helicopters and Power Boats

(1)

Helicopters

The Secretary shall increase, by not less than 100, the number of helicopters under the control of the United States Border Patrol. The Secretary shall ensure that appropriate types of helicopters are procured for the various missions being performed.

(2)

Power boats

The Secretary shall increase, by not less than 250, the number of power boats under the control of the United States Border Patrol. The Secretary shall ensure that the types of power boats that are procured are appropriate for both the waterways in which they are used and the mission requirements.

(3)

Use and training

The Secretary shall—

(A)

establish an overall policy on how the helicopters and power boats procured under this subsection will be used; and

(B)

implement training programs for the agents who use such assets, including safe operating procedures and rescue operations.

(c)

Motor Vehicles

(1)

Quantity

The Secretary shall establish a fleet of motor vehicles appropriate for use by the United States Border Patrol that will permit a ratio of not less than 1 police-type vehicle for every 3 agents. These police-type vehicles shall be replaced not less than every 3 years. The Secretary shall ensure that there are sufficient numbers and types of other motor vehicles to support the mission of the United States Border Patrol.

(2)

Features

All motor vehicles purchased for the United States Border Patrol shall—

(A)

be appropriate for the mission of the United States Border Patrol; and

(B)

have a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.

153.

Electronic equipment

(a)

Portable Computers

The Secretary shall ensure that each police-type motor vehicle in the fleet of the United States Border Patrol is equipped with a portable computer with access to all necessary law enforcement databases and otherwise suited to the unique operational requirements of the United States Border Patrol.

(b)

Radio Communications

The Secretary shall augment the existing radio communications system so that all law enforcement personnel working in each area where United States Border Patrol operations are conducted have clear and encrypted 2-way radio communication capabilities at all times. Each portable communications device shall be equipped with a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.

(c)

Hand-Held Global Positioning System Devices

The Secretary shall ensure that each United States Border Patrol agent is issued a state-of-the-art hand-held global positioning system device for navigational purposes.

(d)

Night Vision Equipment

The Secretary shall ensure that sufficient quantities of state-of-the-art night vision equipment are procured and maintained to enable each United States Border Patrol agent working during the hours of darkness to be equipped with a portable night vision device.

154.

Personal equipment

(a)

Border Armor

The Secretary shall ensure that every agent is issued high-quality body armor that is appropriate for the climate and risks faced by the agent. Each agent shall be permitted to select from among a variety of approved brands and styles. Agents shall be strongly encouraged, but not required, to wear such body armor whenever practicable. All body armor shall be replaced not less than every 5 years.

(b)

Weapons

The Secretary shall ensure that agents are equipped with weapons that are reliable and effective to protect themselves, their fellow agents, and innocent third parties from the threats posed by armed criminals. The Secretary shall ensure that the policies of the Department authorize all agents to carry weapons that are suited to the potential threats that they face.

(c)

Uniforms

The Secretary shall ensure that all agents are provided with all necessary uniform items, including outerwear suited to the climate, footwear, belts, holsters, and personal protective equipment, at no cost to such agents. Such items shall be replaced at no cost to such agents as they become worn, unserviceable, or no longer fit properly.

155.

Authorization of appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this subtitle.

II

Interior Enforcement

201.

Removal and denial of benefits to terrorist aliens

(a)

Asylum

Section 208(b)(2)(A)(v) (8 U.S.C. 1158(b)(2)(A)(v)) is amended by striking or (VI) and inserting (V), (VI), (VII), or (VIII).

(b)

Cancellation of Removal

Section 240A(c)(4) (8 U.S.C. 1229b(c)(4)) is amended—

(1)

by striking inadmissible under and inserting described in; and

(2)

by striking deportable under and inserting described in.

(c)

Voluntary Departure

Section 240B(b)(1)(C) (8 U.S.C. 1229c(b)(1)(C)) is amended by striking deportable under section 237(a)(2)(A)(iii) or section 237(a)(4) and inserting described in paragraph (2)(A)(iii) or (4) of section 237(a).

(d)

Restriction on Removal

Section 241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)) is amended—

(1)

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

(2)

in clause (iv) by striking the period at the end and inserting ; or;

(3)

by inserting after clause (iv) the following:

(v)

the alien is described in section 237(a)(4)(B) (other than an alien described in section 212(a)(3)(B)(i)(IV) if the Secretary of Homeland Security determines that there are not reasonable grounds for regarding the alien as a danger to the security of the United States).

; and

(4)

in the undesignated paragraph, by striking For purposes of clause (iv), an alien who is described in section 237(a)(4)(B) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States..

(e)

Record of Admission

Section 249 (8 U.S.C. 1259) is amended to read as follows:

249.

Record of admission for permanent residence in the case of certain aliens who entered the United States Prior to January 1, 1972

A record of lawful admission for permanent residence may be made, in the discretion of the Secretary of Homeland Security and under such regulations as the Secretary may prescribe, for any alien, as of the date of the approval of the alien’s application or, if entry occurred before July 1, 1924, as of the date of such entry if no such record is otherwise available, if the alien establishes that the alien—

(1)

is not described in section 212(a)(3)(E) or in section 212(a) (insofar as it relates to criminals, procurers, other immoral persons, subversives, violators of the narcotics laws, or smugglers of aliens);

(2)

entered the United States before January 1, 1972;

(3)

has resided in the United States continuously since such entry;

(4)

is a person of good moral character;

(5)

is not ineligible for citizenship; and

(6)

is not described in section 237(a)(4)(B).

.

(f)

Effective Date and Application

The amendments made by this section shall—

(1)

take effect on the date of the enactment of this Act; and

(2)

apply to any act or condition constituting a ground for inadmissibility, excludability, or removal occurring or existing on or after the date of the enactment of this Act.

202.

Detention and removal of aliens ordered removed

(a)

In General

(1)

Amendments

Section 241(a) (8 U.S.C. 1231(a)) is amended—

(A)

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

(B)

by striking Attorney General any other place it appears and inserting Secretary;

(C)

in paragraph (1)—

(i)

in subparagraph (B), by amending clause (ii) 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 expiration date of the stay of removal.

;

(ii)

by amending subparagraph (C) to read as follows:

(C)

Extension of period

The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to—

(i)

make all reasonable efforts to comply with the removal order; or

(ii)

fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including failing to make timely application in good faith for travel or other documents necessary to the alien’s departure, or conspiring or acting to prevent the alien’s removal.

; and

(iii)

by adding at the end the following:

(D)

Tolling of period

If, at the time described in subparagraph (B), the alien is not in the custody of the Secretary under the authority of this Act, the removal period shall not begin until the alien is taken into such custody. If the Secretary lawfully transfers custody of the alien during the removal period to another Federal agency or to a State or local government agency in connection with the official duties of such agency, the removal period shall be tolled, and shall recommence on the date on which the alien is returned to the custody of the Secretary.

;

(D)

in paragraph (2), by adding at the end the following: If a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administrative final order of removal, the Secretary, in the exercise of discretion, may detain the alien during the pendency of such stay of removal.;

(E)

in paragraph (3), by amending subparagraph (D) to read as follows:

(D)

to obey reasonable restrictions on the alien’s conduct or activities, or to perform affirmative acts, that the Secretary prescribes for the alien—

(i)

to prevent the alien from absconding;

(ii)

for the protection of the community; or

(iii)

for other purposes related to the enforcement of the immigration laws.

;

(F)

in paragraph (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;

(G)

by redesignating paragraph (7) as paragraph (10); and

(H)

by inserting after paragraph (6) the following:

(7)

Parole

If an alien detained pursuant to paragraph (6) is an applicant for admission, the Secretary of Homeland Security, in the Secretary’s discretion, may parole the alien under section 212(d)(5) 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)

Additional rules for detention or release of aliens

The following procedures shall apply to an alien detained under this section:

(A)

Detention review process for aliens who have effected an entry and fully cooperate with removal

The Secretary of Homeland Security shall establish an administrative review process to determine whether an alien described in subparagraph (B) should be detained or released after the removal period in accordance with this paragraph.

(B)

Alien described

An alien is described in this subparagraph if the alien—

(i)

has effected an entry into the United States;

(ii)

has made all reasonable efforts to comply with the alien’s removal order;

(iii)

has cooperated fully with the Secretary’s efforts to establish the alien’s identity and to carry out the removal order, including making timely application in good faith for travel or other documents necessary for the alien’s departure; and

(iv)

has not conspired or acted to prevent removal.

(C)

Evidence

In making a determination under subparagraph (A), the Secretary—

(i)

shall consider any evidence submitted by the alien;

(ii)

may consider any other evidence, including—

(I)

any information or assistance provided by the Department of State or other Federal agency; and

(II)

any other information available to the Secretary pertaining to the ability to remove the alien.

(D)

Authority to detain for 90 days beyond removal period

The Secretary, in the exercise of the Secretary’s discretion and without any limitations other than those specified in this section, may detain an alien for 90 days beyond the removal period (including any extension of the removal period under paragraph (1)(C)).

(E)

Authority to detain for additional period

The Secretary, in the exercise of the Secretary’s discretion and without any limitations other than those specified in this section, may detain an alien beyond the 90-day period authorized under subparagraph (D) until the alien is removed, if the Secretary—

(i)

determines that there is a significant likelihood that the alien will be removed in the reasonably foreseeable future; or

(ii)

certifies in writing—

(I)

in consultation with the Secretary of Health and Human Services, that 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, that the release of the alien would likely have serious adverse foreign policy consequences for the United States;

(III)

based on information available to the Secretary (including classified, sensitive, or national security information, and regardless of the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States;

(IV)

that—

(aa)

the release of the alien would threaten the safety of the community or any person, and conditions of release cannot reasonably be expected to ensure the safety of the community or any person; and

(bb)

the alien—

(AA)

has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)), or of 1 or more attempts or conspiracies to commit any such aggravated felonies for an aggregate term of imprisonment of at least 5 years; or

(BB)

has committed a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, is likely to engage in acts of violence in the future; or

(V)

that—

(aa)

the release of the alien would threaten the safety of the community or any person, notwithstanding conditions of release designed to ensure the safety of the community or any person; and

(bb)

the alien has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)) for which the alien was sentenced to an aggregate term of imprisonment of not less than 1 year.

(F)

Administrative review process

The Secretary, without any limitations other than those specified in this section, may detain an alien pending a determination under subparagraph (E)(ii), if the Secretary has initiated the administrative review process identified in subparagraph (A) not later than 30 days after the expiration of the removal period (including any extension of the removal period under paragraph (1)(C)).

(G)

Renewal and delegation of certification

(i)

Renewal

The Secretary may renew a certification under subparagraph (E)(ii) every 6 months, without limitation, after providing the alien with an opportunity to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew such certification, the Secretary shall release the alien, pursuant to subparagraph (H).

(ii)

Delegation

Notwithstanding any other provision of law, the Secretary may not delegate the authority to make or renew a certification described in subclause (II), (III), or (V) of subparagraph (E)(ii) to any employee reporting to the Assistant Secretary for Immigration and Customs Enforcement.

(iii)

Hearing

The Secretary may request that the Attorney General, or a designee of the Attorney General, provide for a hearing to make the determination described in subparagraph (E)(ii)(IV)(bb)(BB).

(H)

Release on conditions

If it is determined that an alien should be released from detention, the Secretary may, in the Secretary’s discretion, impose conditions on release in accordance with the regulations prescribed pursuant to paragraph (3).

(I)

Redetention

The Secretary, without any limitations other than those specified in this section, may detain any alien subject to a final removal order who has previously been released from custody if—

(i)

the alien fails to comply with the conditions of release;

(ii)

the alien fails to continue to satisfy the conditions described in subparagraph (B); or

(iii)

upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (E).

(J)

Applicability

This paragraph and paragraphs (6) and (7) shall apply to any alien returned to custody under subparagraph (I) as if the removal period terminated on the day of the redetention.

(K)

Detention review process for aliens who have effected an entry and fail to cooperate with removal

The Secretary shall detain an alien until the alien makes all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary’s efforts, if the alien—

(i)

has effected an entry into the United States; and

(ii)
(I)

and the alien faces a significant likelihood that the alien will be removed in the reasonably foreseeable future, or would have been removed if the alien had not—

(aa)

failed or refused to make all reasonable efforts to comply with a removal order;

(bb)

failed or refused to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including the failure to make timely application in good faith for travel or other documents necessary to the alien’s departure; or

(cc)

conspired or acted to prevent removal; or

(II)

the Secretary makes a certification as specified in subparagraph (E), or the renewal of a certification specified in subparagraph (G).

(L)

Detention review process for aliens who have not effected an entry

Except as otherwise provided in this subparagraph, the Secretary shall follow the guidelines established in section 241.4 of title 8, Code of Federal Regulations, when detaining aliens who have not effected an entry. The Secretary may decide to apply the review process outlined in this paragraph.

(9)

Judicial review

Without regard to the place of confinement, judicial review of any action or decision made pursuant to paragraph (6), (7), or (8) shall be available exclusively in a habeas corpus proceeding brought in a United States district court and only if the alien has exhausted all administrative remedies available to the alien as of right.

.

(2)

Effective date

The amendments made by paragraph (1)—

(A)

shall take effect on the date of the enactment of this Act; and

(B)

shall apply to—

(i)

any alien 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

(ii)

any act or condition occurring or existing before, on, or after the date of the enactment of this Act.

(b)

Criminal Detention of Aliens

Section 3142 of title 18, United States Code, is amended—

(1)

in subsection (e)—

(A)

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

(B)

by inserting (1) before If, after a hearing;

(C)

in subparagraphs (B) and (C), as redesignated, by striking paragraph (1) and inserting subparagraph (A); and

(D)

by adding after subparagraph (C), as redesignated, the following:

(2)

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required if the judicial officer finds that there is probable cause to believe that the person—

(A)

is an alien; and

(B)
(i)

has no lawful immigration status in the United States;

(ii)

is the subject of a final order of removal; or

(iii)

has committed a felony offense under section 911, 922(g)(5), 1015, 1028, 1425, or 1426 of this title, chapter 75 or 77 of this title, or section 243, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1253, 1324, 1325, 1326, 2327, and 1328).

; and

(2)

in subsection (g)(3)—

(A)

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

(B)

by adding at the end the following:

(C)

the person’s immigration status; and

.

203.

Aggravated felony

(a)

Definition of Aggravated Felony

Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended—

(1)

by striking The term aggravated felony means— and inserting Notwithstanding any other provision of law (except for the provision providing an effective date for section 203 of the Comprehensive Immigration Reform Act of 2007), the term aggravated felony applies to an offense described in this paragraph, whether in violation of Federal or State law and to such an offense in violation of the law of a foreign country, for which the term of imprisonment was completed within the previous 15 years, even if the length of the term of imprisonment is based on recidivist or other enhancements and regardless of whether the conviction was entered before, on, or after September 30, 1996, and
means—
;

(2)

in subparagraph (A), by striking murder, rape, or sexual abuse of a minor; and inserting murder, rape, or sexual abuse of a minor, whether or not the minority of the victim is established by evidence contained in the record of conviction or by evidence extrinsic to the record of conviction;;

(3)

in subparagraph (N), by striking paragraph (1)(A) or (2) of;

(4)

in subparagraph (O), by striking section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph and inserting section 275 or 276 for which the term of imprisonment is at least 1 year;

(5)

in subparagraph (U), by striking an attempt or conspiracy to commit an offense described in this paragraph and inserting aiding or abetting an offense described in this paragraph, or soliciting, counseling, procuring, commanding, or inducing another, attempting, or conspiring to commit such an offense; and

(6)

by striking the undesignated matter following subparagraph (U).

(b)

Effective Date and Application

(1)

In general

The amendments made by subsection (a) shall—

(A)

take effect on the date of the enactment of this Act; and

(B)

apply to any act that occurred on or after the date of the enactment of this Act.

(2)

Application of iiraira amendments

The amendments to section 101(a)(43) of the Immigration and Nationality Act made by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–627) shall continue to apply, whether the conviction was entered before, on, or after September 30, 1996.

204.

Terrorist bars

(a)

Definition of Good Moral Character

Section 101(f) (8 U.S.C. 1101(f)) is amended—

(1)

by inserting after paragraph (1) the following:

(2)

an alien described in section 212(a)(3) or 237(a)(4), as determined by the Secretary of Homeland Security or Attorney General based upon any relevant information or evidence, including classified, sensitive, or national security information;

;

(2)

in paragraph (8), by striking “(as defined in subsection (a)(43))” and inserting the following: “, regardless of whether the crime was defined as an aggravated felony under subsection (a)(43) at the time of the conviction, unless—

(A)

the person completed the term of imprisonment and sentence not later than 10 years before the date of application; and

(B)

the Secretary of Homeland Security or the Attorney General waives the application of this paragraph; or

; and

(3)

in the undesignated matter following paragraph (9), by striking a finding that for other reasons such person is or was not of good moral character and inserting the following: a discretionary finding for other reasons that such a person is or was not of good moral character. In determining an applicant’s moral character, the Secretary of Homeland Security and the Attorney General may take into consideration the applicant’s conduct and acts at any time and are not limited to the period during which good moral character is required..

(b)

Pending Proceedings

Section 204(b) (8 U.S.C. 1154(b)) is amended by adding at the end the following: A petition may not be approved under this section if there is any administrative or judicial proceeding (whether civil or criminal) pending against the petitioner that could directly or indirectly result in the petitioner’s denaturalization or the loss of the petitioner’s lawful permanent resident status..

(c)

Conditional Permanent Resident Status

(1)

In general

Section 216(e) (8 U.S.C. 1186a(e)) is amended by inserting if the alien has had the conditional basis removed pursuant to this section before the period at the end.

(2)

Certain alien entrepreneurs

Section 216A(e) (8 U.S.C. 1186b(e)) is amended by inserting if the alien has had the conditional basis removed pursuant to this section before the period at the end.

(d)

Judicial Review of Naturalization Applications

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

(1)

by inserting , not later than 120 days after the Secretary of Homeland Security’s final determination, after may; and

(2)

by adding at the end the following: Except that in any proceeding, other than a proceeding under section 340, the court shall review for substantial evidence the administrative record and findings of the Secretary of Homeland Security regarding whether an alien is a person of good moral character, understands and is attached to the principles of the Constitution of the United States, or is well disposed to the good order and happiness of the United States. The petitioner shall have the burden of showing that the Secretary’s denial of the application was contrary to law..

(e)

Persons Endangering National Security

Section 316 (8 U.S.C. 1427) is amended by adding at the end the following:

(g)

Persons Endangering the National Security

A person may not be naturalized if the Secretary of Homeland Security determines, based upon any relevant information or evidence, including classified, sensitive, or national security information, that the person was once an alien described in section 212(a)(3) or 237(a)(4).

.

(f)

Concurrent Naturalization and Removal Proceedings

Section 318 (8 U.S.C. 1429) is amended by striking the Attorney General if and all that follows and inserting: the Secretary of Homeland Security or any court if there is pending against the applicant any removal proceeding or other proceeding to determine the applicant’s inadmissibility or deportability, or to determine whether the applicant’s lawful permanent resident status should be rescinded, regardless of when such proceeding was commenced. The findings of the Attorney General in terminating removal proceedings or canceling the removal of an alien under this Act shall not be deemed binding in any way upon the Secretary of Homeland Security with respect to the question of whether such person has established eligibility for naturalization in accordance with this title..

(g)

District Court Jurisdiction

Section 336(b) (8 U.S.C. 1447(b)) is amended to read as follows:

(b)

Request for Hearing Before District Court

If there is a failure to render a final administrative decision under section 335 before the end of the 180-day period beginning on the date on which the Secretary of Homeland Security completes all examinations and interviews required under such section, the applicant may apply to the district court for the district in which the applicant resides for a hearing on the matter. The Secretary shall notify the applicant when such examinations and interviews have been completed. Such district court shall only have jurisdiction to review the basis for delay and remand the matter, with appropriate instructions, to the Secretary for the Secretary’s determination on the application.

.

(h)

Effective Date

The amendments made by this section—

(1)

shall take effect on the date of the enactment of this Act; and

(2)

shall apply to any act that occurred on or after such date of enactment.

205.

Increased criminal penalties related to gang violence, removal, and alien smuggling

(a)

Criminal Street Gangs

(1)

Inadmissibility

Section 212(a)(2) (8 U.S.C. 1182(a)(2)) is amended—

(A)

by redesignating subparagraph (F) as subparagraph (J); and

(B)

by inserting after subparagraph (E) the following:

(F)

Members of criminal street gangs

Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who a consular officer, the Attorney General, or the Secretary of Homeland Security knows or has reason to believe—

(i)

is, or has been, a member of a criminal street gang (as defined in section 521(a) of title 18, United States Code); or

(ii)

has participated in the activities of a criminal street gang, knowing or having reason to know that such activities promoted, furthered, aided, or supported the illegal activity of the criminal gang,

is inadmissible.

.

(2)

Deportability

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

(F)

Members of criminal street gangs

Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who the Secretary of Homeland Security or the Attorney General knows or has reason to believe—

(i)

is, or at any time after admission has been, a member of a criminal street gang (as defined in section 521(a) of title 18, United States Code); or

(ii)

has participated in the activities of a criminal street gang, knowing or having reason to know that such activities promoted, furthered, aided, or supported the illegal activity of the criminal gang,

is deportable.

.

(3)

Temporary protected status

Section 244 (8 U.S.C. 1254a) is amended—

(A)

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

(B)

in subsection (b)(3)—

(i)

in subparagraph (B), by striking the last sentence and inserting the following: Notwithstanding any other provision of this section, the Secretary of Homeland Security may, for any reason (including national security), terminate or modify any designation under this section. Such termination or modification is effective upon publication in the Federal Register, or after such time as the Secretary may designate in the Federal Register.;

(ii)

in subparagraph (C), by striking a period of 12 or 18 months and inserting any other period not to exceed 18 months;

(C)

in subsection (c)—

(i)

in paragraph (1)(B), by striking The amount of any such fee shall not exceed $50.;

(ii)

in paragraph (2)(B)—

(I)

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

(II)

in clause (ii), by striking the period at the end and inserting ; or; and

(III)

by adding at the end the following:

(iii)

the alien is, or at any time after admission has been, a member of a criminal street gang (as defined in section 521(a) of title 18, United States Code).

; and

(D)

in subsection (d)—

(i)

by striking paragraph (3); and

(ii)

in paragraph (4), by adding at the end the following: The Secretary of Homeland Security may detain an alien provided temporary protected status under this section whenever appropriate under any other provision of law..

(b)

Penalties Related to Removal

Section 243 (8 U.S.C. 1253) is amended—

(1)

in subsection (a)(1)—

(A)

in the matter preceding subparagraph (A), by inserting 212(a) or after section; and

(B)

in the matter following subparagraph (D)—

(i)

by striking or imprisoned not more than four years and inserting and imprisoned for not less than 6 months or more than 5 years; and

(ii)

by striking , or both;

(2)

in subsection (b), by striking not more than $1000 or imprisoned for not more than one year, or both and inserting under title 18, United States Code, and imprisoned for not less than 6 months or more than 5 years (or for not more than 10 years if the alien is a member of any of the classes described in paragraphs (1)(E), (2), (3), and (4) of section 237(a)).; and

(3)

by amending subsection (d) to read as follows:

(d)

Denying Visas to Nationals of Country Denying or Delaying Accepting Alien

The Secretary of Homeland Security, after making a determination that the government of a foreign country has denied or unreasonably delayed accepting an alien who is a citizen, subject, national, or resident of that country after the alien has been ordered removed, and after consultation with the Secretary of State, may instruct the Secretary of State to deny a visa to any citizen, subject, national, or resident of that country until the country accepts the alien that was ordered removed.

.

(c)

Alien Smuggling and Related Offenses

(1)

In general

Section 274 (8 U.S.C. 1324), is amended to read as follows:

274.

Alien smuggling and related offenses

(a)

Criminal Offenses and Penalties

(1)

Prohibited activities

Except as provided in paragraph (3), a person shall be punished as provided under paragraph (2), if the person—

(A)

facilitates, encourages, directs, or induces a person to come to or enter the United States, or to cross the border to the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to come to, enter, or cross the border to the United States;

(B)

facilitates, encourages, directs, or induces a person to come to or enter the United States, or to cross the border to 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, knowing or in reckless disregard of the fact that such person is an alien and regardless of whether such alien has official permission or lawful authority to be in the United States;

(C)

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 1 country to another or on the high seas, under circumstances in which the alien is seeking to enter the United States without official permission or legal authority;

(D)

encourages or induces a person to reside 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 the United States;

(E)

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, if the transportation or movement will further the alien’s illegal entry into or illegal presence in the United States;

(F)

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; or

(G)

conspires or attempts to commit any of the acts described in subparagraphs (A) through (F).

(2)

Criminal penalties

A person who violates any provision under paragraph (1)—

(A)

except as provided in subparagraphs (C) through (G), if the offense was not committed for commercial advantage, profit, or private financial gain, shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both;

(B)

except as provided in subparagraphs (C) through (G), if the offense was committed for commercial advantage, profit, or private financial gain—

(i)

if the violation is the offender’s first violation under this subparagraph, shall be fined under such title, imprisoned for not more than 20 years, or both; or

(ii)

if the violation is the offender’s second or subsequent violation of this subparagraph, shall be fined under such title, imprisoned for not less than 3 years or more than 20 years, or both;

(C)

if the offense furthered or aided the commission of any other offense against the United States or any State that is punishable by imprisonment for more than 1 year, shall be fined under such title, imprisoned for not less than 5 years or more than 20 years, or both;

(D)

shall be fined under such title, imprisoned not less than 5 years or more than 20 years, or both, if the offense created a substantial and foreseeable risk of death, a substantial and foreseeable risk of serious bodily injury (as defined in section 2119(2) of title 18, United States Code), or inhumane conditions to another person, including—

(i)

transporting the person in an engine compartment, storage compartment, or other confined space;

(ii)

transporting the person at an excessive speed or in excess of the rated capacity of the means of transportation; or

(iii)

transporting the person in, harboring the person in, or otherwise subjecting the person to crowded or dangerous conditions;

(E)

if the offense caused serious bodily injury (as defined in section 2119(2) of title 18, United States Code) to any person, shall be fined under such title, imprisoned for not less than 7 years or more than 30 years, or both;

(F)

shall be fined under such title and imprisoned for not less than 10 years or more than 30 years if the offense involved an alien who the offender knew or had reason to believe was—

(i)

engaged in terrorist activity (as defined in section 212(a)(3)(B)); or

(ii)

intending to engage in terrorist activity;

(G)

if the offense caused or resulted in the death of any person, shall be punished by death or imprisoned for a term of years not less than 10 years and up to life, and fined under title 18, United States Code.

(3)

Limitation

It is not a violation of subparagraph (D), (E), or (F) of paragraph (1)—

(A)

for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least 1 year; or

(B)

for an individual or organization, not previously convicted of a violation of this section, to provide an alien who is present in the United States with humanitarian assistance, including medical care, housing, counseling, victim services, and food, or to transport the alien to a location where such assistance can be rendered.

(4)

Extraterritorial jurisdiction

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

(b)

Employment of Unauthorized Aliens

(1)

Criminal offense and penalties

Any person who, during any 12-month period, knowingly employs 10 or more individuals with actual knowledge or in reckless disregard of the fact that the individuals are aliens described in paragraph (2), shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both.

(2)

Definition

An alien described in this paragraph is an alien who—

(A)

is an unauthorized alien (as defined in section 274A(i));

(B)

is present in the United States without lawful authority; and

(C)

has been brought into the United States in violation of this subsection.

(c)

Seizure and Forfeiture

(1)

In general

Any real or personal property used to commit or facilitate the commission of a violation of this section, the gross proceeds of such violation, and any property traceable to such property or proceeds, shall be subject to forfeiture.

(2)

Applicable procedures

Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 of title 18, United States Code, relating to civil forfeitures, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security.

(3)

Prima facie evidence in determinations of violations

In determining whether a violation of subsection (a) has occurred, prima facie evidence that an alien involved in the alleged violation lacks lawful authority to come to, enter, reside in, remain in, or be in the United States or that such alien had come to, entered, resided in, remained in, or been present in the United States in violation of law shall include—

(A)

any order, finding, or determination concerning the alien’s status or lack of status made by a Federal judge or administrative adjudicator (including an immigration judge or immigration officer) during any judicial or administrative proceeding authorized under Federal immigration law;

(B)

official records of the Department of Homeland Security, the Department of Justice, or the Department of State concerning the alien’s status or lack of status; and

(C)

testimony by an immigration officer having personal knowledge of the facts concerning the alien’s status or lack of status.

(d)

Authority To Arrest

No officer or person shall have authority to make any arrests for a violation of any provision of this section except—

(1)

officers and employees designated by the Secretary of Homeland Security, either individually or as a member of a class; and

(2)

other officers responsible for the enforcement of Federal criminal laws.

(e)

Admissibility of Videotaped Witness Testimony

Notwithstanding any provision of the Federal Rules of Evidence, the videotaped or otherwise audiovisually preserved deposition of a witness to a violation of subsection (a) who has been deported or otherwise expelled from the United States, or is otherwise unavailable to testify, may be admitted into evidence in an action brought for that violation if—

(1)

the witness was available for cross examination at the deposition by the party, if any, opposing admission of the testimony; and

(2)

the deposition otherwise complies with the Federal Rules of Evidence.

(f)

Outreach Program

(1)

In general

The Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of State, as appropriate, shall—

(A)

develop and implement an outreach program to educate people in and out of the United States about the penalties for bringing in and harboring aliens in violation of this section; and

(B)

establish the American Local and Interior Enforcement Needs (ALIEN) Task Force to identify and respond to the use of Federal, State, and local transportation infrastructure to further the trafficking of unlawful aliens within the United States.

(2)

Field offices

The Secretary of Homeland Security, after consulting with State and local government officials, shall establish such field offices as may be necessary to carry out this subsection.

(3)

Authorization of appropriations

There are authorized to be appropriated such sums are necessary for the fiscal years 2008 through 2012 to carry out this subsection.

(g)

Definitions

In this section:

(1)

Crossed the border into the united states

An alien is deemed to have crossed the border into the United States regardless of whether the alien is free from official restraint.

(2)

Lawful authority

The term lawful authority means permission, authorization, or license that is expressly provided for in the immigration laws of the United States or accompanying regulations. The term does not include any such authority secured by fraud or otherwise obtained in violation of law or authority sought, but not approved. No alien shall be deemed to have lawful authority to come to, enter, reside in, remain in, or be in the United States if such coming to, entry, residence, remaining, or presence was, is, or would be in violation of law.

(3)

Proceeds

The term proceeds includes any property or interest in property obtained or retained as a consequence of an act or omission in violation of this section.

(4)

Unlawful transit

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 the alien is traveling or moving.

.

(2)

Clerical amendment

The table of contents is amended by striking the item relating to section 274 and inserting the following:

Sec. 274. Alien smuggling and related offenses.

.

(d)

Prohibiting Carrying or Using a Firearm During and in Relation to an Alien Smuggling Crime

Section 924(c) of title 18, United States Code, is amended—

(1)

in paragraph (1)—

(A)

in subparagraph (A), by inserting , alien smuggling crime, after any crime of violence;

(B)

in subparagraph (A), by inserting , alien smuggling crime, after such crime of violence;

(C)

in subparagraph (D)(ii), by inserting , alien smuggling crime, after crime of violence; and

(2)

by adding at the end the following:

(6)

For purposes of this subsection, the term alien smuggling crime means any felony punishable under section 274(a), 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1324(a), 1327, and 1328).

.

206.

Illegal entry

(a)

In General

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

275.

Illegal entry

(a)

In General

(1)

Criminal offenses

An alien shall be subject to the penalties set forth in paragraph (2) if the alien—

(A)

knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;

(B)

knowingly eludes examination or inspection by an immigration officer (including failing to stop at the command of such officer), or a customs or agriculture inspection at a port of entry; or

(C)

knowingly enters or crosses the border to the United States by means of a knowingly false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws).

(2)

Criminal penalties

Any alien who violates any provision under paragraph (1)—

(A)

shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;

(B)

shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years, or both;

(C)

if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 10 years, or both;

(D)

if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 15 years, or both; and

(E)

if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 20 years, or both.

(3)

Prior convictions

The prior convictions described in subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described in that paragraph and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—

(A)

alleged in the indictment or information; and

(B)

proven beyond a reasonable doubt at trial or admitted by the defendant.

(4)

Duration of offense

An offense under this subsection continues until the alien is discovered within the United States by an immigration officer.

(5)

Attempt

Whoever attempts to commit any offense under this section shall be punished in the same manner as for a completion of such offense.

(b)

Improper Time or Place; Civil Penalties

(1)

In general

Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to—

(A)

not less than $50 or more than $250 for each such entry, crossing, attempted entry, or attempted crossing; or

(B)

twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.

(2)

Crossed the border defined

In this section, an alien is deemed to have crossed the border if the act was voluntary, regardless of whether the alien was under observation at the time of the crossing.

.

(b)

Clerical Amendment

The table of contents is amended by striking the item relating to section 275 and inserting the following:

Sec. 275. Illegal entry.

.

207.

Illegal reentry

Section 276 (8 U.S.C. 1326) is amended to read as follows:

276.

Reentry of removed aliens

(a)

Reentry After Removal

Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.

(b)

Reentry of Criminal Offenders

Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection—

(1)

was convicted for 3 or more misdemeanors or a felony before such removal or departure, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;

(2)

was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not more than 15 years, or both;

(3)

was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not more than 20 years, or both;

(4)

was convicted for 3 felonies before such removal or departure, the alien shall be fined under such title, imprisoned not more than 20 years, or both; or

(5)

was convicted, before such removal or departure, for murder, rape, kidnaping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, the alien shall be fined under such title, imprisoned not more than 20 years, or both.

(c)

Reentry After Repeated Removal

Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.

(d)

Proof of Prior Convictions

The prior convictions described in subsection (b) are elements of the crimes described in that subsection, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—

(1)

alleged in the indictment or information; and

(2)

proven beyond a reasonable doubt at trial or admitted by the defendant.

(e)

Affirmative Defenses

It shall be an affirmative defense to a violation of this section that—

(1)

prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States; or

(2)

with respect to an alien previously denied admission and removed, the alien—

(A)

was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act; and

(B)

had complied with all other laws and regulations governing the alien’s admission into the United States.

(f)

Limitation on Collateral Attack on Underlying Removal Order

In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien unless the alien demonstrates by clear and convincing evidence that—

(1)

the alien exhausted all administrative remedies that may have been available to seek relief against the order;

(2)

the removal proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3)

the entry of the order was fundamentally unfair.

(g)

Reentry of Alien Removed Prior to Completion of Term of Imprisonment

Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.

(h)

Limitation

It is not aiding and abetting a violation of this section for an individual to provide an alien with emergency humanitarian assistance, including emergency medical care and food, or to transport the alien to a location where such assistance can be rendered without compensation or the expectation of compensation.

(i)

Definitions

In this section:

(1)

Crosses the border

The term crosses the border applies if an alien acts voluntarily, regardless of whether the alien was under observation at the time of the crossing.

(2)

Felony

Term felony means any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.

(3)

Misdemeanor

The term misdemeanor means any criminal offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or a foreign government.

(4)

Removal

The term removal includes any denial of admission, exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.

(5)

State

The term State means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

.

208.

Reform of passport, visa, and Immigration fraud offenses

(a)

Passport, Visa, and Immigration Fraud

(1)

In general

Chapter 75 of title 18, United States Code, is amended to read as follows:

75

PASSPORT, VISA, AND IMMIGRATION FRAUD

Sec.

1541. Trafficking in passports.

1542. False statement in an application for a passport.

1543. Forgery and unlawful production of a passport.

1544. Misuse of a passport.

1545. Schemes to defraud aliens.

1546. Immigration and visa fraud.

1547. Marriage fraud.

1548. Attempts and conspiracies.

1549. Alternative penalties for certain offenses.

1550. Seizure and forfeiture.

1551. Additional jurisdiction.

1552. Additional venue.

1553. Definitions.

1554. Authorized law enforcement activities.

1555. Exception for refugees and asylees.

1541.

Trafficking in passports

(a)

Multiple Passports

Any person who, during any 3-year period, knowingly—

(1)

and without lawful authority produces, issues, or transfers 10 or more passports;

(2)

forges, counterfeits, alters, or falsely makes 10 or more passports;

(3)

secures, possesses, uses, receives, buys, sells, or distributes 10 or more passports, knowing the passports to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority; or

(4)

completes, mails, prepares, presents, signs, or submits 10 or more applications for a United States passport (including any supporting documentation), knowing the applications to contain any false statement or representation,

shall be fined under this title, imprisoned not more than 20 years, or both.
(b)

Passport Materials

Any person who knowingly and without lawful authority produces, counterfeits, secures, possesses, or uses any official paper, seal, hologram, image, text, symbol, stamp, engraving, plate, or other material used to make a passport shall be fined under this title, imprisoned not more than 20 years, or both.

1542.

False statement in an application for a passport

Any person who knowingly—

(1)

makes any false statement or representation in an application for a United States passport (including any supporting documentation);

(2)

completes, mails, prepares, presents, signs, or submits an application for a United States passport (including any supporting documentation) knowing the application to contain any false statement or representation; or

(3)

causes or attempts to cause the production of a passport by means of any fraud or false application for a United States passport (including any supporting documentation), if such production occurs or would occur at a facility authorized by the Secretary of State for the production of passports,

shall be fined under this title, imprisoned not more than 15 years, or both.
1543.

Forgery and unlawful production of a passport

(a)

Forgery

Any person who—

(1)

knowingly forges, counterfeits, alters, or falsely makes any passport; or

(2)

knowingly transfers any passport knowing it to be forged, counterfeited, altered, falsely made, stolen, or to have been produced or issued without lawful authority,

shall be fined under this title, imprisoned not more than 15 years, or both.
(b)

Unlawful Production

Any person who knowingly and without lawful authority—

(1)

produces, issues, authorizes, or verifies a passport in violation of the laws, regulations, or rules governing the issuance of the passport;

(2)

produces, issues, authorizes, or verifies a United States passport for or to any person not owing allegiance to the United States; or

(3)

transfers or furnishes a passport to a person for use when such person is not the person for whom the passport was issued or designed,

shall be fined under this title, imprisoned not more than 15 years, or both.
1544.

Misuse of a passport

(a)

In General

Any person who knowingly—

(1)

uses any passport issued or designed for the use of another;

(2)

uses any passport in violation of the conditions or restrictions therein contained, or in violation of the laws, regulations, or rules governing the issuance and use of the passport;

(3)

secures, possesses, uses, receives, buys, sells, or distributes any passport knowing it to be forged, counterfeited, altered, falsely made, procured by fraud, or produced or issued without lawful authority; or

(4)

violates the terms and conditions of any safe conduct duly obtained and issued under the authority of the United States,

shall be fined under this title, imprisoned not more than 15 years, or both.
(b)

Entry; Fraud

Any person who knowingly uses any passport, knowing the passport to be forged, counterfeited, altered, falsely made, procured by fraud, produced or issued without lawful authority, or issued or designed for the use of another—

(1)

to enter or to attempt to enter the United States; or

(2)

to defraud the United States, a State, or a political subdivision of a State,

shall be fined under this title, imprisoned not more than 15 years, or both.
1545.

Schemes to defraud aliens

(a)

In General

Any person who knowingly executes a scheme or artifice, in connection with any matter that is authorized by or arises under Federal immigration laws, or any matter the offender claims or represents is authorized by or arises under Federal immigration laws—

(1)

to defraud any person; or

(2)

to obtain or receive from any person, by means of false or fraudulent pretenses, representations, promises, money or anything else of value,

shall be fined under this title, imprisoned not more than 15 years, or both.
(b)

Misrepresentation

Any person who knowingly and falsely represents himself to be an attorney in any matter arising under Federal immigration laws shall be fined under this title, imprisoned not more than 15 years, or both.

1546.

Immigration and visa fraud

(a)

In General

Any person who knowingly—

(1)

uses any immigration document issued or designed for the use of another;

(2)

forges, counterfeits, alters, or falsely makes any immigration document;

(3)

completes, mails, prepares, presents, signs, or submits any immigration document knowing it to contain any materially false statement or representation;

(4)

secures, possesses, uses, transfers, receives, buys, sells, or distributes any immigration document knowing it to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority;

(5)

adopts or uses a false or fictitious name to evade or to attempt to evade the immigration laws; or

(6)

transfers or furnishes an immigration document to a person without lawful authority for use if such person is not the person for whom the immigration document was issued or designed,

shall be fined under this title, imprisoned not more than 15 years, or both.
(b)

Multiple Violations

Any person who, during any 3-year period, knowingly—

(1)

and without lawful authority produces, issues, or transfers 10 or more immigration documents;

(2)

forges, counterfeits, alters, or falsely makes 10 or more immigration documents;

(3)

secures, possesses, uses, buys, sells, or distributes 10 or more immigration documents, knowing the immigration documents to be forged, counterfeited, altered, stolen, falsely made, procured by fraud, or produced or issued without lawful authority; or

(4)

completes, mails, prepares, presents, signs, or submits 10 or more immigration documents knowing the documents to contain any materially false statement or representation,

shall be fined under this title, imprisoned not more than 20 years, or both.
(c)

Immigration Document Materials

Any person who knowingly and without lawful authority produces, counterfeits, secures, possesses, or uses any official paper, seal, hologram, image, text, symbol, stamp, engraving, plate, or other material, used to make an immigration document shall be fined under this title, imprisoned not more than 20 years, or both.

1547.

Marriage fraud

(a)

Evasion or Misrepresentation

Any person who—

(1)

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

(2)

knowingly misrepresents the existence or circumstances of a marriage—

(A)

in an application or document authorized by the immigration laws; or

(B)

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 this title, imprisoned not more than 10 years, or both.
(b)

Multiple Marriages

Any person who—

(1)

knowingly enters into 2 or more marriages for the purpose of evading any immigration law; or

(2)

knowingly arranges, supports, or facilitates 2 or more marriages designed or intended to evade any immigration law,

shall be fined under this title, imprisoned not more than 20 years, or both.
(c)

Commercial Enterprise

Any person who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be fined under this title, imprisoned for not more than 10 years, or both.

(d)

Duration of Offense

(1)

In general

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

(2)

Commercial enterprise

An offense under subsection (c) continues until the fraudulent nature of commercial enterprise is discovered by an immigration officer or other law enforcement officer.

1548.

Attempts and conspiracies

Any person who attempts or conspires to violate any section of this chapter shall be punished in the same manner as a person who completed a violation of that section.

1549.

Alternative penalties for certain offenses

(a)

Terrorism

Any person who violates any section of this chapter—

(1)

knowing that such violation will facilitate an act of international terrorism or domestic terrorism (as those terms are defined in section 2331); or

(2)

with the intent to facilitate an act of international terrorism or domestic terrorism,

shall be fined under this title, imprisoned not more than 25 years, or both.
(b)

Offense Against Government

Any person who violates any section of this chapter—

(1)

knowing that such violation will facilitate the commission of any offense against the United States (other than an offense in this chapter) or against any State, which offense is punishable by imprisonment for more than 1 year; or

(2)

with the intent to facilitate the commission of any offense against the United States (other than an offense in this chapter) or against any State, which offense is punishable by imprisonment for more than 1 year,

shall be fined under this title, imprisoned not more than 20 years, or both.
1550.

Seizure and forfeiture

(a)

Forfeiture

Any property, real or personal, used to commit or facilitate the commission of a violation of any section of this chapter, the gross proceeds of such violation, and any property traceable to such property or proceeds, shall be subject to forfeiture.

(b)

Applicable Law

Seizures and forfeitures under this section shall be governed by the provisions of chapter 46 relating to civil forfeitures, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security, the Secretary of State, or the Attorney General.

1551.

Additional jurisdiction

(a)

In General

Any person who commits an offense under this chapter within the special maritime and territorial jurisdiction of the United States shall be punished as provided under this chapter.

(b)

Extraterritorial Jurisdiction

Any person who commits an offense under this chapter outside the United States shall be punished as provided under this chapter if—

(1)

the offense involves a United States immigration document (or any document purporting to be such a document) or any matter, right, or benefit arising under or authorized by Federal immigration laws;

(2)

the offense is in or affects foreign commerce;

(3)

the offense affects, jeopardizes, or poses a significant risk to the lawful administration of Federal immigration laws, or the national security of the United States;

(4)

the offense is committed to facilitate an act of international terrorism (as defined in section 2331) or a drug trafficking crime (as defined in section 929(a)(2)) that affects or would affect the national security of the United States;

(5)

the offender is a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22))) or an alien lawfully admitted for permanent residence in the United States (as defined in section 101(a)(20) of such Act); or

(6)

the offender is a stateless person whose habitual residence is in the United States.

1552.

Additional venue

(a)

In General

An offense under section 1542 may be prosecuted in—

(1)

any district in which the false statement or representation was made;

(2)

any district in which the passport application was prepared, submitted, mailed, received, processed, or adjudicated; or

(3)

in the case of an application prepared and adjudicated outside the United States, in the district in which the resultant passport was produced.

(b)

Savings Clause

Nothing in this section limits the venue otherwise available under sections 3237 and 3238.

1553.

Definitions

As used in this chapter:

(1)

The term falsely make means to prepare or complete an immigration document with knowledge or in reckless disregard of the fact that the document—

(A)

contains a statement or representation that is false, fictitious, or fraudulent;

(B)

has no basis in fact or law; or

(C)

otherwise fails to state a fact which is material to the purpose for which the document was created, designed, or submitted.

(2)

The term a false statement or representation includes a personation or an omission.

(3)

The term felony means any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.

(4)

The term immigration document

(A)

means—

(i)

any passport or visa; or

(ii)

any application, petition, affidavit, declaration, attestation, form, identification card, alien registration document, employment authorization document, border crossing card, certificate, permit, order, license, stamp, authorization, grant of authority, or other evidentiary document, arising under or authorized by the immigration laws of the United States; and

(B)

includes any document, photograph, or other piece of evidence attached to or submitted in support of an immigration document.

(5)

The term immigration laws includes—

(A)

the laws described in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17));

(B)

the laws relating to the issuance and use of passports; and

(C)

the regulations prescribed under the authority of any law described in subparagraph (A) or (B).

(6)

The term immigration proceeding includes an adjudication, interview, hearing, or review.

(7)

A person does not exercise lawful authority if the person abuses or improperly exercises lawful authority the person otherwise holds.

(8)

The term passport means a travel document attesting to the identity and nationality of the bearer that is issued under the authority of the Secretary of State, a foreign government, or an international organization; or any instrument purporting to be the same.

(9)

The term produce means to make, prepare, assemble, issue, print, authenticate, or alter.

(10)

The term State means a State of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States.

1554.

Authorized law enforcement activities

Nothing in this chapter shall prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or an intelligence agency of the United States, or any activity authorized under title V of the Organized Crime Control Act of 1970 (84 Stat. 933).

1555.

Exception for refugees, asylees, and other vulnerable persons

(a)

In General

If a person believed to have violated section 1542, 1544, 1546, or 1548 while attempting to enter the United States, without delay, indicates an intention to apply for asylum under section 208 or 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158 and 1231), or for relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (in accordance with section 208.17 of title 8, Code of Federal Regulations), or under section 101(a)(15)(T), 101(a)(15)(U), 101(a)(27)(J), 101(a)(51), 216(c)(4)(C), 240A(b)(2), or 244(a)(3) (as in effect prior to March 31, 1997) of such Act, or a credible fear of persecution or torture—

(1)

the person shall be referred to an appropriate Federal immigration official to review such claim and make a determination if such claim is warranted;

(2)

if the Federal immigration official determines that the person qualifies for the claimed relief, the person shall not be considered to have violated any such section; and

(3)

if the Federal immigration official determines that the person does not qualify for the claimed relief, the person shall be referred to an appropriate Federal official for prosecution under this chapter.

(b)

Savings Provision

Nothing in this section shall be construed to diminish, increase, or alter the obligations of refugees or the United States under article 31(1) of the Convention Relating to the Status of Refugees, done at Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status of Refugees, done at New York January 31, 1967 (19 UST 6223)).

.

(2)

Clerical amendment

The table of chapters in title 18, United States Code, is amended by striking the item relating to chapter 75 and inserting the following:

“75. Passport, visa, and immigration fraud1541”.
(b)

Protection for Legitimate Refugees and Asylum Seekers

Section 208 (8 U.S.C. 1158) is amended by adding at the end the following:

(e)

Protection for Legitimate Refugees and Asylum Seekers

The Attorney General, in consultation with the Secretary of Homeland Security, shall develop binding prosecution guidelines for Federal prosecutors to ensure that any prosecution of an alien seeking entry into the United States by fraud is consistent with the written terms and limitations of Article 31(1) of the Convention Relating to the Status of Refugees, done at Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status of Refugees, done at New York January 31, 1967 (19 UST 6223)).

.

209.

Inadmissibility and removal for passport and immigration fraud offenses

(a)

Inadmissibility

Section 212(a)(2)(A)(i) (8 U.S.C. 1182(a)(2)(A)(i)) is amended—

(1)

in subclause (I), by striking , or at the end and inserting a semicolon;

(2)

in subclause (II), by striking the comma at the end and inserting ; or; and

(3)

by inserting after subclause (II) the following:

(III)

a violation of (or a conspiracy or attempt to violate) any provision of chapter 75 of title 18, United States Code,

.

(b)

Removal

Section 237(a)(3)(B)(iii) (8 U.S.C. 1227(a)(3)(B)(iii)) is amended to read as follows:

(iii)

of a violation of any provision of chapter 75 of title 18, United States Code,

.

(c)

Effective Date

The amendments made by subsections (a) and (b) shall apply to proceedings pending on or after the date of the enactment of this Act, with respect to conduct occurring on or after that date.

210.

Incarceration of criminal aliens

(a)

Institutional Removal Program

(1)

Continuation

The Secretary shall continue to operate the Institutional Removal Program (referred to in this section as the Program) or shall develop and implement another 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)

Expansion

The Secretary may extend the scope of the Program to all States.

(b)

Authorization for Detention After Completion of State or Local Prison Sentence

Law enforcement officers of a State or political subdivision of a State may—

(1)

hold an illegal alien for a period not to exceed 14 days after the completion of the alien’s State prison sentence to effectuate the transfer of the alien to Federal custody if 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 authorized employees of the Bureau of Immigration and Customs Enforcement can take the alien into custody.

(c)

Technology Usage

Technology, such as videoconferencing, shall be used to the maximum extent practicable to make the 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 to make these resources available to State and local law enforcement agencies in remote locations.

(d)

Report to Congress

Not later than 6 months after the date of the enactment of this Act, and annually thereafter, the Secretary shall submit a report to Congress on the participation of States in the Program and in any other program authorized under subsection (a).

(e)

Authorization of Appropriations

There are authorized to be appropriated such sums as may be necessary in each of the fiscal years 2008 through 2012 to carry out the Program.

211.

Encouraging aliens to depart voluntarily

(a)

In General

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

(1)

in subsection (a)—

(A)

by amending paragraph (1) to read as follows:

(1)

Instead of removal proceedings

If an alien is not described in paragraph (2)(A)(iii) or (4) of section 237(a), the Secretary of Homeland Security may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection instead of being subject to proceedings under section 240.

;

(B)

by striking paragraph (3);

(C)

by redesignating paragraph (2) as paragraph (3);

(D)

by adding after paragraph (1) the following:

(2)

Before the conclusion of removal proceedings

If an alien is not described in paragraph (2)(A)(iii) or (4) of section 237(a), the Attorney General may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection after the initiation of removal proceedings under section 240 and before the conclusion of such proceedings before an immigration judge.

;

(E)

in paragraph (3), as redesignated—

(i)

by amending subparagraph (A) to read as follows:

(A)

Instead of removal

Subject to subparagraph (C), permission to voluntarily depart under paragraph (1) shall not be valid for any period in excess of 120 days. The Secretary may require an alien permitted to voluntarily depart 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)

by redesignating subparagraphs (B), (C), and (D) as paragraphs (C), (D), and (E), respectively;

(iii)

by adding after subparagraph (A) the following:

(B)

Before the conclusion of removal proceedings

Permission to voluntarily depart under paragraph (2) shall not be valid for any period in excess of 60 days, and may be granted only after a finding that the alien has the means to depart the United States and intends to do so. An alien permitted to voluntarily depart under paragraph (2) shall 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 the requirement to post a voluntary departure bond in individual cases upon a finding that the alien has presented compelling evidence that the posting of a bond will pose a serious financial hardship and the alien has presented credible evidence that such a bond is unnecessary to guarantee timely departure.

;

(iv)

in subparagraph (C), as redesignated, by striking subparagraphs (C) and(D)(ii) and inserting subparagraphs (D) and (E)(ii);

(v)

in subparagraph (D), as redesignated, by striking subparagraph (B) each place that term appears and inserting subparagraph (C); and

(vi)

in subparagraph (E), as redesignated, by striking subparagraph (B) each place that term appears and inserting subparagraph (C); and

(F)

in paragraph (4), by striking paragraph (1) and inserting paragraphs (1) and (2);

(2)

in subsection (b)(2), by striking a period exceeding 60 days and inserting any period in excess of 45 days;

(3)

by amending subsection (c) to read as follows:

(c)

Conditions on Voluntary Departure

(1)

Voluntary departure agreement

Voluntary departure may only be granted as part of an affirmative agreement by the alien. A voluntary departure agreement under subsection (b) shall include a waiver of the right to any further motion, appeal, application, petition, or petition for review relating to removal or relief or protection from removal.

(2)

Concessions by the secretary

In connection with the alien’s agreement to depart voluntarily under paragraph (1), the Secretary of Homeland Security may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9).

(3)

Advisals

Agreements relating to voluntary departure granted during removal proceedings under section 240, or at the conclusion of such proceedings, shall be presented on the record before the immigration judge. The immigration judge shall advise the alien of the consequences of a voluntary departure agreement before accepting such agreement.

(4)

Failure to comply with agreement

(A)

In general

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 failure to timely post any required bond), the alien is—

(i)

ineligible for the benefits of the agreement;

(ii)

subject to the penalties described in subsection (d); and

(iii)

subject to an alternate order of removal if voluntary departure was granted under subsection (a)(2) or (b).

(B)

Effect of filing timely appeal

If, after agreeing to voluntary departure, the alien 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 of such agreement, but precludes the alien from another grant of voluntary departure while the alien remains in the United States.

(5)

Voluntary departure period not affected

Except as expressly agreed to by the Secretary 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.

;

(4)

by amending subsection (d) to read as follows:

(d)

Penalties for Failure To Depart

If an alien is permitted to voluntarily depart under this section and fails to voluntarily depart from the United States within the time period specified or otherwise violates the terms of a voluntary departure agreement, the alien will be subject to the following penalties:

(1)

Civil penalty

The alien shall be liable for a civil penalty of $3,000. The order allowing voluntary departure shall specify the amount of the penalty, which shall be acknowledged by the alien on the record. If the Secretary 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. An alien will be ineligible for any benefits under this chapter until this civil penalty is paid.

(2)

Ineligibility for relief

The alien shall 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. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.

(3)

Reopening

The alien shall be ineligible to reopen the final order of removal that took effect upon the alien’s failure to depart, or upon the alien’s other violations of the conditions for voluntary departure, during the period described in paragraph (2). This paragraph does not preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion—

(A)

presents material evidence of changed country conditions arising after the date of the order granting voluntary departure in the country to which the alien would be removed; and

(B)

makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.

; and

(5)

by amending subsection (e) to read as follows:

(e)

Eligibility

(1)

Prior grant of voluntary departure

An alien shall not be permitted to voluntarily depart under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily.

(2)

Rulemaking

The Secretary may promulgate regulations to limit eligibility or impose additional conditions for voluntary departure under subsection (a)(1) for any class of aliens. The Secretary or Attorney General may by regulation limit eligibility or impose additional conditions for voluntary departure under subsections (a)(2) or (b) of this section for any class or classes of aliens.

; and

(6)

in subsection (f), by adding at the end the following: Notwithstanding section 242(a)(2)(D) of this Act, sections 1361, 1651, and 2241 of title 28, United States Code, any other habeas corpus provision, and any other provision of law, no court shall have jurisdiction to affect, reinstate, enjoin, delay, stay, or toll the period allowed for voluntary departure under this section..

(b)

Rulemaking

The Secretary shall promulgate regulations to provide for the imposition and collection of penalties for failure to depart under section 240B(d) of the Immigration and Nationality Act (8 U.S.C. 1229c(d)).

(c)

Effective Dates

(1)

In general

Except as provided in paragraph (2), the amendments made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the date that is 180 days after the enactment of this Act.

(2)

Exception

The amendment made by subsection (a)(6) shall take effect on the date of the enactment of this Act and shall apply with respect to any petition for review which is filed on or after such date.

212.

Deterring aliens ordered removed from remaining in the United States unlawfully

(a)

Inadmissible Aliens

Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is amended—

(1)

in clause (i), by striking seeks admission within 5 years of the date of such removal (or within 20 years and inserting seeks admission not later than 5 years after the date of the alien’s removal (or not later than 20 years after the alien’s removal; and

(2)

in clause (ii), by striking seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of and inserting seeks admission not later than 10 years after the date of the alien’s departure or removal (or not later than 20 years after.

(b)

Bar on Discretionary Relief

Section 274D (9 U.S.C. 324d) is amended—

(1)

in subsection (a), by striking Commissioner and inserting Secretary of Homeland Security; and

(2)

by adding at the end the following:

(c)

Ineligibility for Relief

(1)

In general

Unless a timely motion to reopen is granted under section 240(c)(6), an alien described in subsection (a) shall be ineligible for any discretionary relief from removal (including cancellation of removal and adjustment of status) during the time the alien remains in the United States and for a period of 10 years after the alien’s departure from the United States.

(2)

Savings provision

Nothing in paragraph (1) shall preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion—

(A)

presents material evidence of changed country conditions arising after the date of the final order of removal in the country to which the alien would be removed; and

(B)

makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.

.

(c)

Effective Dates

The amendments made by this section shall take effect on the date of the enactment of this Act with respect to aliens who are subject to a final order of removal entered on or after such date.

213.

Prohibition of the sale of firearms to, or the possession of firearms by certain aliens

Section 922 of title 18, United States Code, is amended—

(1)

in subsection (d)(5)—

(A)

in subparagraph (A), by striking or at the end;

(B)

in subparagraph (B), by striking (y)(2) and all that follows and inserting (y), is in a nonimmigrant classification; or; and

(C)

by adding at the end the following:

(C)

has been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5));

;

(2)

in subsection (g)(5)—

(A)

in subparagraph (A), by striking or at the end;

(B)

in subparagraph (B), by striking (y)(2) and all that follows and inserting (y), is in a nonimmigrant classification; or; and

(C)

by adding at the end the following:

(C)

has been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5));

; and

(3)

in subsection (y)—

(A)

in the header, by striking Admitted Under Nonimmigrant Visas and inserting in a Nonimmigrant Classification;

(B)

in paragraph (1), by amending subparagraph (B) to read as follows:

(B)

the term nonimmigrant classification includes all classes of nonimmigrant aliens described in section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), or otherwise described in the immigration laws (as defined in section 101(a)(17) of such Act).

;

(C)

in paragraph (2), by striking has been lawfully admitted to the United States under a nonimmigrant visa and inserting is in a nonimmigrant classification; and

(D)

in paragraph (3)(A), by striking Any individual who has been admitted to the United States under a nonimmigrant visa may receive a waiver from the requirements of subsection (g)(5) and inserting Any alien in a nonimmigrant classification may receive a waiver from the requirements of subsection (g)(5)(B).

214.

Uniform statute of limitations for certain immigration, naturalization, and peonage offenses

(a)

In General

Section 3291 of title 18, United States Code, is amended to read as follows:

3291.

Immigration, naturalization, and peonage offenses

No person shall be prosecuted, tried, or punished for a violation of any section of chapters 69 (relating to nationality and citizenship offenses), 75 (relating to passport, visa, and immigration offenses), or 77 (relating to peonage, slavery, and trafficking in persons), for an attempt or conspiracy to violate any such section, for a violation of any criminal provision under section 243, 266, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1253, 1306, 1324, 1325, 1326, 1327, and 1328), or for an attempt or conspiracy to violate any such section, unless the indictment is returned or the information filed not later than 10 years after the commission of the offense.

.

(b)

Clerical Amendment

The table of sections for chapter 213 of title 18, United States Code, is amended by striking the item relating to section 3291 and inserting the following:

3291. Immigration, naturalization, and peonage offenses.

.

215.

Diplomatic Security Service

Paragraph (1) of section 37(a) of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2709(a)) is amended to read as follows:

(1)

conduct investigations concerning—

(A)

illegal passport or visa issuance or use;

(B)

identity theft or document fraud affecting or relating to the programs, functions, and authorities of the Department of State;

(C)

violations of chapter 77 of title 18, United States Code; and

(D)

Federal offenses committed within the special maritime and territorial jurisdiction of the United States (as defined in section 7(9) of title 18, United States Code);

.

216.

Field agent allocation and background checks

(a)

In General

Section 103 (8 U.S.C. 1103) is amended—

(1)

by amending subsection (f) to read as follows:

(f)

Minimum Number of Agents in States

(1)

In general

The Secretary of Homeland Security shall allocate to each State—

(A)

not fewer than 40 full-time active duty agents of the Bureau of Immigration and Customs Enforcement to—

(i)

investigate immigration violations; and

(ii)

ensure the departure of all removable aliens; and

(B)

not fewer than 15 full-time active duty agents of the Bureau of Citizenship and Immigration Services to carry out immigration and naturalization adjudication functions.

(2)

Waiver

The Secretary may waive the application of paragraph (1) for any State with a population of less than 2,000,000, as most recently reported by the Bureau of the Census

; and

(2)

by adding at the end the following:

(i)

Notwithstanding any other provision of law, appropriate background and security checks, as determined by the Secretary of Homeland Security, shall be completed and assessed and any suspected or alleged fraud relating to the granting of any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this Act shall be investigated and resolved before the Secretary or the Attorney General may—

(1)

grant or order the grant of adjustment of status of an alien 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 Secretary, the Attorney General, or any court.

.

(b)

Effective Date

The amendment made by subsection (a)(1) shall take effect on the date that is 90 days after the date of the enactment of this Act.

(c)

Authorization of Appropriations

There is authorized to be appropriated to the Director of the Federal Bureau of Investigations $3,125,000 for each of the fiscal years 2008 through 2012 for improving the speed and accuracy of background and security checks conducted by the Federal Bureau of Investigations on behalf of the Bureau of Citizenship and Immigrations Services.

(d)

Report on Background and Security Checks

(1)

In general

Not later than 180 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigations shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the background and security checks conducted by the Federal Bureau of Investigations on behalf of the Bureau of Citizenship and Immigrations Services

(2)

Content

The report required under paragraph (1) shall include—

(A)

a description of the background and security check program;

(B)

a statistical breakdown of the background and security check delays associated with different types of immigration applications;

(C)

a statistical breakdown of the background and security check delays by applicant country of origin; and

(D)

the steps the Federal Bureau of Investigations is taking to expedite background and security checks that have been pending for more than 60 days.

217.

Construction

(a)

In General

Chapter 4 of title III (8 U.S.C. 1501 et seq.) is amended by adding at the end the following:

362.

Construction

(a)

In General

Nothing in this Act or in any other provision of law shall be construed to require the Secretary of Homeland Security, the Attorney General, the Secretary of State, the Secretary of Labor, or any other authorized head of any Federal 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 subparagraph (A)(i), (A)(iii), (B), or (F) of section 212(a)(3) or subparagraph (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)

Denial; Withholding

An official described in subsection (a) may deny or withhold (with respect to an alien described in subsection (a)(1)) or withhold pending resolution of the investigation, case, or law enforcement checks (with respect to an alien described in paragraph (2) or (3) of subsection (a)) any such application, petition, status, or benefit on such basis.

.

(b)

Clerical Amendment

The table of contents is amended by inserting after the item relating to section 361 the following:

Sec. 362. Construction.

.

218.

State Criminal Alien Assistance Program

(a)

Reimbursement for Costs Associated With Processing Criminal Illegal Aliens

The Secretary shall reimburse States and units of local government for costs associated with processing undocumented criminal aliens through the criminal justice system, including—

(1)

indigent defense;

(2)

criminal prosecution;

(3)

autopsies;

(4)

translators and interpreters; and

(5)

courts costs.

(b)

Authorization of Appropriations

(1)

Processing criminal illegal aliens

There are authorized to be appropriated $400,000,000 for each of the fiscal years 2008 through 2012 to carry out subsection (a).

(2)

Compensation upon request

Section 241(i)(5) (8 U.S.C. 1231(i)) is amended to read as follows:

(5)

There are authorized to be appropriated to carry this subsection—

(A)

such sums as may be necessary for fiscal year 2008;

(B)

$750,000,000 for fiscal year 2009;

(C)

$850,000,000 for fiscal year 2010; and

(D)

$950,000,000 for each of the fiscal years 2011 and 2012.

.

(c)

Technical Amendment

Section 501 of the Immigration Reform and Control Act of 1986 (8 U.S.C. 1365) is amended by striking Attorney General each place it appears and inserting Secretary of Homeland Security.

219.

Transportation and processing of illegal aliens apprehended by State and local law enforcement officers

(a)

In General

The Secretary shall provide sufficient transportation and officers to take illegal aliens apprehended by State and local law enforcement officers into custody for processing at a detention facility operated by the Department.

(b)

Authorization of Appropriations

There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.

220.

Reducing illegal immigration and alien smuggling on tribal lands

(a)

Grants Authorized

The Secretary may award grants to Indian tribes with lands adjacent to an international border of the United States that have been adversely affected by illegal immigration.

(b)

Use of Funds

Grants awarded under subsection (a) may be used for—

(1)

law enforcement activities;

(2)

health care services;

(3)

environmental restoration; and

(4)

the preservation of cultural resources.

(c)

Report

Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that—

(1)

describes the level of access of Border Patrol agents on tribal lands;

(2)

describes the extent to which enforcement of immigration laws may be improved by enhanced access to tribal lands;

(3)

contains a strategy for improving such access through cooperation with tribal authorities; and

(4)

identifies grants provided by the Department for Indian tribes, either directly or through State or local grants, relating to border security expenses.

(d)

Authorization of Appropriations

There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.

221.

Alternatives to detention

The Secretary shall conduct a study of—

(1)

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;

(2)

the effectiveness of the Intensive Supervision Appearance Program and the costs and benefits of expanding that program to all States; and

(3)

other alternatives to detention, including—

(A)

release on an order of recognizance;

(B)

appearance bonds; and

(C)

electronic monitoring devices.

222.

Conforming amendment

Section 101(a)(43)(P) (8 U.S.C. 1101(a)(43)(P)) is amended—

(1)

by striking (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18, United States Code, or is described in section 1546(a) of such title (relating to document fraud) and (ii) and inserting which is described in chapter 75 of title 18, United States Code, and; and

(2)

by inserting the following: that is not described in section 1548 of such title (relating to increased penalties), and after first offense.

223.

Reporting requirements

(a)

Clarifying Address Reporting Requirements

Section 265 (8 U.S.C. 1305) is amended—

(1)

in subsection (a)—

(A)

by striking notify the Attorney General in writing and inserting submit written or electronic notification to the Secretary of Homeland Security, in a manner approved by the Secretary,;

(B)

by striking the Attorney General may require by regulation and inserting the Secretary may require; and

(C)

by adding at the end the following: If the alien is involved in proceedings before an immigration judge or in an administrative appeal of such proceedings, the alien shall submit to the Attorney General the alien’s current address and a telephone number, if any, at which the alien may be contacted.;

(2)

in subsection (b), by striking Attorney General each place such term appears and inserting Secretary of Homeland Security;

(3)

in subsection (c), by striking given to such parent and inserting given by such parent; and

(4)

by adding at the end the following:

(d)

Address To Be Provided

(1)

In general

Except as otherwise provided by the Secretary under paragraph (2), an address provided by an alien under this section shall be the alien’s current residential mailing address, and shall not be a post office box or other non-residential mailing address or the address of an attorney, representative, labor organization, or employer.

(2)

Specific requirements

The Secretary may provide specific requirements with respect to—

(A)

designated classes of aliens and special circumstances, including aliens who are employed at a remote location; and

(B)

the reporting of address information by aliens who are incarcerated in a Federal, State, or local correctional facility.

(3)

Detention

An alien who is being detained by the Secretary under this Act is not required to report the alien’s current address under this section during the time the alien remains in detention, but shall be required to notify the Secretary of the alien’s address under this section at the time of the alien’s release from detention.

(e)

Use of Most Recent Address Provided by the Alien

(1)

In general

Notwithstanding any other provision of law, the Secretary may provide for the appropriate coordination and cross referencing of address information provided by an alien under this section with other information relating to the alien’s address under other Federal programs, including—

(A)

any information pertaining to the alien, which is submitted in any application, petition, or motion filed under this Act with the Secretary of Homeland Security, the Secretary of State, or the Secretary of Labor;

(B)

any information available to the Attorney General with respect to an alien in a proceeding before an immigration judge or an administrative appeal or judicial review of such proceeding;

(C)

any information collected with respect to nonimmigrant foreign students or exchange program participants under section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372); and

(D)

any information collected from State or local correctional agencies pursuant to the State Criminal Alien Assistance Program.

(2)

Reliance

The Secretary may rely on the most recent address provided by the alien under this section or section 264 to send to the alien any notice, form, document, or other matter pertaining to Federal immigration laws, including service of a notice to appear. The Attorney General and the Secretary may rely on the most recent address provided by the alien under section 239(a)(1)(F) to contact the alien about pending removal proceedings.

(3)

Obligation

The alien’s provision of an address for any other purpose under the Federal immigration laws does not excuse the alien’s obligation to submit timely notice of the alien’s address to the Secretary under this section (or to the Attorney General under section 239(a)(1)(F) with respect to an alien in a proceeding before an immigration judge or an administrative appeal of such proceeding).

.

(b)

Conforming Changes With Respect to Registration Requirements

Chapter 7 of title II (8 U.S.C. 1301 et seq.) is amended—

(1)

in section 262(c), by striking Attorney General and inserting Secretary of Homeland Security;

(2)

in section 263(a), by striking Attorney General and inserting Secretary of Homeland Security; and

(3)

in section 264—

(A)

in subsections (a), (b), (c), and (d), by striking Attorney General each place it appears and inserting Secretary of Homeland Security; and

(B)

in subsection (f)—

(i)

by striking Attorney General is authorized and inserting Secretary of Homeland Security and Attorney General are authorized; and

(ii)

by striking Attorney General or the Service and inserting Secretary or the Attorney General.

(c)

Penalties

Section 266 (8 U.S.C. 1306) is amended—

(1)

by amending subsection (b) to read as follows:

(b)

Failure To Provide Notice of Alien’s Current Address

(1)

Criminal penalties

Any alien or any parent or legal guardian in the United States of any minor alien who fails to notify the Secretary of Homeland Security of the alien’s current address in accordance with section 265 shall be fined under title 18, United States Code, imprisoned for not more than 6 months, or both.

(2)

Effect on immigration status

Any alien who violates section 265 (regardless of whether the alien is punished under paragraph (1)) and does not establish to the satisfaction of the Secretary that such failure was reasonably excusable or was not willful shall be taken into custody in connection with removal of the alien. If the alien has not been inspected or admitted, or if the alien has failed on more than 1 occasion to submit notice of the alien’s current address as required under section 265, the alien may be presumed to be a flight risk. The Secretary or the Attorney General, in considering any form of relief from removal which may be granted in the discretion of the Secretary or the Attorney General, may take into consideration the alien’s failure to comply with section 265 as a separate negative factor. If the alien failed to comply with the requirements of section 265 after becoming subject to a final order of removal, deportation, or exclusion, the alien’s failure shall be considered as a strongly negative factor with respect to any discretionary motion for reopening or reconsideration filed by the alien.

;

(2)

in subsection (c), by inserting or a notice of current address before containing statements; and

(3)

in subsections (c) and (d), by striking Attorney General each place it appears and inserting Secretary.

(d)

Effective Dates

(1)

In general

Except as provided in paragraph (2), the amendments made by this section shall apply to proceedings initiated on or after the date of the enactment of this Act.

(2)

Conforming and technical amendments

The amendments made by paragraphs (1)(A), (1)(B), (2) and (3) of subsection (a) are effective as if enacted on March 1, 2003.

224.

State and local enforcement of Federal immigration laws

(a)

In General

Section 287(g) (8 U.S.C. 1357(g)) is amended—

(1)

in paragraph (2), by adding at the end the following: If such training is provided by a State or political subdivision of a State to an officer or employee of such State or political subdivision of a State, the cost of such training (including applicable overtime costs) shall be reimbursed by the Secretary of Homeland Security.; and

(2)

in paragraph (4), by adding at the end the following: The cost of any equipment required to be purchased under such written agreement and necessary to perform the functions under this subsection shall be reimbursed by the Secretary of Homeland Security..

(b)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this section and the amendments made by this section.

225.

Removal of drunk drivers

(a)

In General

Section 101(a)(43)(F) (8 U.S.C. 1101(a)(43)(F)) is amended by inserting , including a third drunk driving conviction, regardless of the States in which the convictions occurred or whether the offenses are classified as misdemeanors or felonies under State law, after offense).

(b)

Effective Date

The amendment made by subsection (a) shall—

(1)

take effect on the date of the enactment of this Act; and

(2)

apply to convictions entered on or after such date.

226.

Medical services in underserved areas

Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (8 U.S.C. 1182 note) is amended by striking and before June 1, 2006.

227.

Expedited removal

(a)

In General

Section 238 (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)

In general

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)

Aliens described

An alien is described in this paragraph if the alien—

(A)

has not been lawfully admitted to the United States for permanent residence; and

(B)

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 subsection (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)

Application to Certain Aliens

(1)

In general

Section 235(b)(1)(A)(iii) (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)

Exception

Notwithstanding subclauses (I) and (II), the Secretary of Homeland Security shall apply clauses (i) and (ii) of this subparagraph to any alien (other than an alien described in subparagraph (F)) who is not a national of a country contiguous to the United States, who has not been admitted or paroled into the United States, and who is apprehended within 100 miles of an international land border of the United States and within 14 days of entry.

.

(2)

Exceptions

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)

Effective Date

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to all aliens apprehended or convicted on or after such date.

228.

Protecting immigrants from convicted sex offenders

(a)

Immigrants

Section 204(a)(1) (8 U.S.C. 1154(a)(1)), is amended—

(1)

in subparagraph (A)(i), by striking Any and inserting Except as provided in clause (vii), any;

(2)

in subparagraph (A), by inserting after clause (vi) the following:

(vii)

Clause (i) shall not apply to a citizen of the United States who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed.

; and

(3)

in subparagraph (B)(i)—

(A)

by striking Any alien and inserting the following: (I) Except as provided in subclause (II), any alien; and

(B)

by adding at the end the following:

(II)

Subclause (I) shall not apply in the case of an alien admitted for permanent residence who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the alien lawfully admitted for permanent residence poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.

.

(b)

Nonimmigrants

Section 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)), is amended by inserting (other than a citizen described in section 204(a)(1)(A)(vii)) after citizen of the United States each place that phrase appears.

229.

Law enforcement authority of States and political subdivisions and transfer to Federal custody

(a)

In General

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

240D.

Law enforcement authority of States and political subdivisions and transfer of aliens to Federal custody

(a)

Authority

Notwithstanding any other provision of law, law enforcement personnel of a State, or a political subdivision of a State, have the inherent authority of a sovereign entity to investigate, apprehend, arrest, detain, or transfer to Federal custody (including the transportation across State lines to detention centers) an alien for the purpose of assisting in the enforcement of the criminal provisions 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.

(b)

Construction

Nothing in this section shall be construed to require law enforcement personnel of a State or a political subdivision to assist in the enforcement of the immigration laws of the United States.

(c)

Transfer

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 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 alien lawfully admitted to the United States or is otherwise lawfully present in the United States; and

(B)

if the individual is an alien who is not lawfully admitted to the United States or otherwise is not lawfully present in the United States—

(i)

take the illegal alien into the custody of the Federal Government not later than 72 hours after—

(I)

the conclusion of the State charging process or dismissal process; or

(II)

the illegal alien is apprehended, if no State charging or dismissal process is required; or

(ii)

request that the relevant State or local law enforcement agency temporarily detain or transport the 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 aliens to the Department of Homeland Security.

(d)

Reimbursement

(1)

In general

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

(2)

Cost computation

Compensation provided for costs incurred under subparagraphs (A) and (B) of subsection (c)(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 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 alien during the period between the time of transmittal of the request described in subsection (c) and the time of transfer into Federal custody.

(e)

Requirement for Appropriate Security

The Secretary of Homeland Security shall ensure that—

(1)

aliens incarcerated in a Federal facility pursuant to this section are held in facilities which provide an appropriate level of security; and

(2)

if practicable, aliens detained solely for civil violations of Federal immigration law are separated within a facility or facilities.

(f)

Requirement for Schedule

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

(g)

Authority for Contracts

(1)

In general

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)

Determination by secretary

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 if 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.

.

(b)

Authorization of Appropriations for the Detention and Transportation to Federal Custody of Aliens Not Lawfully Present

There are authorized to be appropriated $850,000,000 for fiscal year 2008 and for 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.).

230.

Laundering of monetary instruments

Section 1956(c)(7)(D) of title 18, United States Code, is amended—

(1)

by inserting section 1590 (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor), after section 1363 (relating to destruction of property within the special maritime and territorial jurisdiction),; and

(2)

by inserting section 274(a) of the Immigration and Nationality Act (8 U.S.C.1324(a)) (relating to bringing in and harboring certain aliens), after section 590 of the Tariff Act of 1930 (19 U.S.C. 1590) (relating to aviation smuggling),.

231.

Listing of Immigration violators in the National Crime Information Center database

(a)

Provision of Information to the National Crime Information Center

(1)

In general

Except as provided in paragraph (3), not later than 180 days after the date of the enactment of this Act, the Secretary shall provide to the head of the National Crime Information Center of the Department of Justice the information that the Secretary 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)(3) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) (as amended by section 211(a)(1)(C)), subsection (b)(2) of such section 240B, or who has violated a condition of a voluntary departure agreement under such section 240B;

(C)

whom a Federal immigration officer has confirmed to be unlawfully present in the United States; and

(D)

whose visa has been revoked.

(2)

Removal of information

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

(3)

Procedure for removal of erroneous information

The Secretary, in consultation with the head of the National Crime Information Center of the Department of Justice, shall develop and implement a procedure by which an alien may petition the Secretary or head of the National Crime Information Center, as appropriate, to remove any erroneous information provided by the Secretary under paragraph (1) related to such alien. Under such procedures, failure by the alien to receive notice of a violation of the immigration laws shall not constitute cause for removing information provided by the Secretary under paragraph (1) related to such alien, unless such information is erroneous. Notwithstanding the 180-day time period set forth in paragraph (1), the Secretary shall not provide the information required under paragraph (1) until the procedures required by this paragraph are developed and implemented.

(b)

Inclusion of Information in the National Crime Information Center 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 of the immigration laws of the United States; and

.

232.

Cooperative enforcement programs

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).

233.

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

(a)

Construction or Acquisition of Detention Facilities

(1)

In general

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

(b)

Construction of or Acquisition of Detention Facilities

(1)

Requirement to construct or acquire

The Secretary shall construct or acquire additional detention facilities in the United States to accommodate the detention beds required by section 5204(a) of the Intelligence Reform and Terrorism Protection Act of 2004, as amended by subsection (a), subject to available appropriations.

(2)

Use of alternate detention facilities

Subject to the availability of appropriations, the Secretary shall fully utilize all possible options to cost effectively increase available detention capacities, and shall utilize detention facilities that are owned and operated by the Federal Government if the use of such facilities is cost effective.

(3)

Use of installations under base closure laws

In acquiring additional detention facilities under this subsection, the Secretary 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 subsection (a).

(4)

Determination of location

The location of any detention facility constructed 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. The detention facilities shall be located so as to enable the officers and employees of the Department to increase to the maximum extent practicable the annual rate and level of removals of illegal aliens from the United States.

(c)

Annual Report to Congress

Not later than 1 year after the date of the enactment of this Act, and annually thereafter, in consultation with the heads of other appropriate Federal agencies, the Secretary shall submit to Congress an assessment of the additional detention facilities and bed space needed to detain unlawful aliens apprehended at the United States ports of entry or along the international land borders of the United States.

(d)

Technical and Conforming Amendment

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

(e)

Authorization of Appropriations

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

234.

Determination of immigration status of individuals charged with Federal offenses

(a)

Responsibility of United States Attorneys

Beginning not later than 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)

Guidelines

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)

Responsibilities of Federal Courts

(1)

Modifications of records and case managements systems

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)

Data entries

Beginning not later than 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)

Construction

Nothing in this section may be construed to provide a basis for admitting evidence to a jury or releasing information to the public regarding an alien’s immigration status.

(e)

Annual Report to Congress

The Director of the Administrative Office of the United States Courts shall include, in the annual report filed with 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.

(f)

Authorization of Appropriations

There are authorized to be appropriated for each of the fiscal years 2008 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.

235.

Expansion of the Justice Prisoner and Alien Transfer System

Not later than 60 days after the date of enactment of this Act, the Attorney General shall issue a directive to expand the Justice Prisoner and Alien Transfer System to provide additional services with respect to aliens who are illegally present in the United States. Such expansion should include—

(1)

increasing the daily operations of such System with buses and air hubs in 3 geographic regions;

(2)

allocating a set number of seats for such aliens for each metropolitan area;

(3)

allowing metropolitan areas to trade or give some of seats allocated to them under the System for such aliens to other areas in their region based on the transportation needs of each area; and

(4)

requiring an annual report that analyzes of the number of seats that each metropolitan area is allocated under this System for such aliens and modifies such allocation if necessary.

III

Unlawful Employment of Aliens

301.

Unlawful employment of aliens

(a)

In General

Section 274A (8 U.S.C. 1324a) is amended to read as follows:

274A.

Unlawful employment of aliens

(a)

Making Employment of Unauthorized Aliens Unlawful

(1)

In general

It is unlawful for an employer—

(A)

to hire, or to recruit or refer for a fee, an alien for employment in the United States knowing, or with reckless disregard, that the alien is an unauthorized alien with respect to such employment; or

(B)

to hire, or to recruit or refer for a fee, for employment in the United States an individual unless such employer meets the requirements of subsections (c) and (d).

(2)

Continuing employment

It is unlawful for an employer, after lawfully hiring an alien for employment, to continue to employ the alien in the United States knowing that the alien is (or has become) an unauthorized alien with respect to such employment.

(3)

Use of labor through contract

(A)

In general

An employer who uses a contract, subcontract, or exchange to obtain the labor of an alien in the United States knowing, or with reckless disregard—

(i)

that the alien is an unauthorized alien with respect to performing such labor, shall be considered to have hired the alien in violation of paragraph (1)(A); or

(ii)

that the person hiring such alien failed to comply with the requirements of subsections (c) and (d) shall be considered to have hired the alien in violation of paragraph (1)(B).

(B)

Information sharing

The person hiring the alien shall provide to the employer, who obtains the labor of the alien, the employer identification number assigned to such person by the Commissioner of Internal Revenue. Failure to provide such number shall be considered a recordkeeping violation under subsection (e)(4)(B).

(C)

Reporting requirement

The employer shall submit to the Electronic Verification System established under subsection (d), in a manner prescribed by the Secretary, the employer identification number provided by the person hiring the alien. Failure to submit such number shall be considered a recordkeeping violation under subsection (e)(4)(B).

(D)

Enforcement

The Secretary shall implement procedures to utilize the information obtained under subparagraphs (B) and (C) to identify employers who use a contract, subcontract, or exchange to obtain the labor of an alien from another person, where such person hiring such alien fails to comply with the requirements of subsections (c) and (d).

(4)

Defense

(A)

In general

Subject to subparagraph (B), an employer that establishes that the employer has complied in good faith with the requirements of subsections (c) and (d) has established an affirmative defense that the employer has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral.

(B)

Exception

Until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (d) or is participating in such System on a voluntary basis, the employer may establish an affirmative defense under subparagraph (A) by complying with the requirements of subsection (c).

(b)

Order of Internal Review and Certification of Compliance

(1)

Authority to require certification

If the Secretary has reasonable cause to believe that an employer has failed to comply with this section, the Secretary is authorized, at any time, to require that the employer certify that the employer is in compliance with this section, or has instituted a program to come into compliance.

(2)

Content of certification

Not later than 60 days after the date an employer receives a request for a certification under paragraph (1) the employer shall certify under penalty of perjury that—

(A)

the employer is in compliance with the requirements of subsections (c) and (d); or

(B)

that the employer has instituted a program to come into compliance with such requirements.

(3)

Extension

The 60-day period referred to in paragraph (2), may be extended by the Secretary for good cause, at the request of the employer.

(4)

Publication

The Secretary is authorized to publish in the Federal Register standards or methods for certification under paragraph (1) and for specific recordkeeping practices with respect to such certification, and procedures for the audit of any records related to such certification.

(c)

Document Verification Requirements

An employer hiring, or recruiting or referring for a fee, an individual for employment in the United States shall verify that the individual is eligible for such employment by meeting the following requirements:

(1)

Attestation by employer

(A)

Requirements

(i)

In general

The employer shall attest, under penalty of perjury and on a form prescribed by the Secretary, that the employer has verified the identity and eligibility for employment of the individual by examining a document described in subparagraph (B).

(ii)

Signature requirements

An attestation required by clause (i) may be manifested by a handwritten or electronic signature.

(iii)

Standards for examination

The employer has complied with the requirement of this paragraph with respect to examination of documentation if a reasonable person would conclude that the document examined is genuine and relates to the individual whose identity and eligibility for employment in the United States is being verified. If the individual provides a document sufficient to meet the requirements of this paragraph, nothing in this paragraph shall be construed as requiring an employer to solicit any other document or as requiring the individual to produce any other document.

(B)

Identification documents

A document described in this subparagraph is—

(i)

in the case of an individual who is a national of the United States—

(I)

a United States passport; or

(II)

a driver’s license or identity card issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States that satisfies the requirements of division B of Public Law 109–13 (119 Stat. 302);

(ii)

in the case of an alien lawfully admitted for permanent residence in the United States, a permanent resident card, as specified by the Secretary;

(iii)

in the case of an alien who is authorized under this Act or by the Secretary to be employed in the United States, an employment authorization card, as specified by the Secretary that—

(I)

contains a photograph of the individual or other identifying information, including name, date of birth, gender, and address; and

(II)

contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use;

(iv)

in the case of an individual who is unable to obtain a document described in clause (i), (ii), or (iii), a document designated by the Secretary that—

(I)

contains a photograph of the individual or other identifying information, including name, date of birth, gender, and address; and

(II)

contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use; or

(v)

until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (d) or is participating in such System on a voluntary basis, a document, or a combination of documents, of such type that, as of the date of the enactment of the Comprehensive Immigration Reform Act of 2007, the Secretary had established by regulation were sufficient for purposes of this section.

(C)

Authority to prohibit use of certain documents

(i)

Authority

If the Secretary finds that a document or class of documents described in subparagraph (B) is not reliable to establish identity or is being used fraudulently to an unacceptable degree, the Secretary shall prohibit, or impose conditions, on the use of such document or class of documents for purposes of this subsection.

(ii)

Requirement for publication

The Secretary shall publish notice of any findings under clause (i) in the Federal Register.

(2)

Attestation of employee

(A)

Requirements

(i)

In general

The individual shall attest, under penalty of perjury on the form described in paragraph (1)(A)(i), that the individual is a national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Secretary to be hired, or to be recruited or referred for a fee, in the United States.

(ii)

Signature for examination

An attestation required by clause (i) may be manifested by a handwritten or electronic signature.

(B)

Penalties

An individual who falsely represents that the individual is eligible for employment in the United States in an attestation required by subparagraph (A) shall, for each such violation, be subject to a fine of not more than $5,000, a term of imprisonment not to exceed 3 years, or both.

(3)

Retention of attestation

The employer shall retain a paper, microfiche, microfilm, or electronic version of the attestations made under paragraph (1) and (2) and make such attestations available for inspection by an officer of the Department of Homeland Security, any other person designated by the Secretary, the Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice, or the Secretary of Labor during a period beginning on the date of the hiring, or recruiting or referring for a fee, of the individual and ending—

(A)

in the case of the recruiting or referral for a fee (without hiring) of an individual, 5 years after the date of the recruiting or referral; or

(B)

in the case of the hiring of an individual the later of—

(i)

5 years after the date of such hiring;

(ii)

1 year after the date the individual’s employment is terminated; or

(iii)

in the case of an employer or class of employers, a period that is less than the applicable period described in clause (i) or (ii) if the Secretary reduces such period for such employer or class of employers.

(4)

Document retention and recordkeeping requirements

(A)

Retention of documents

Notwithstanding any other provision of law, an employer shall retain, for the applicable period described in paragraph (3), the following documents:

(i)

In general

The employer shall copy all documents presented by an individual described in paragraph (1)(B) and shall retain paper, microfiche, microfilm, or electronic copies of such documents. Such copies shall be designated as copied documents.

(ii)

Other documents

The employer shall maintain records of any action taken and copies of any correspondence written or received with respect to the verification of an individual’s identity or eligibility for employment in the United States.

(B)

Use of retained documents

An employer shall use copies retained under clause (i) or (ii) of subparagraph (A) only for the purposes of complying with the requirements of this subsection, except as otherwise permitted under law.

(5)

Penalties

An employer that fails to comply with the recordkeeping requirements of this subsection shall be subject to the penalties described in subsection (e)(4)(B).

(6)

No authorization of national identification cards

Nothing in this section may be construed to authorize, directly or indirectly, the issuance, use, or establishment of a national identification card.

(d)

Electronic Employment Verification System

(1)

Requirement for system

The Secretary, in cooperation with the Commissioner of Social Security, shall implement an Electronic Employment Verification System (referred to in this subsection as the System) to determine whether—

(A)

the identifying information submitted by an individual is consistent with the information maintained by the Secretary or the Commissioner of Social Security; and

(B)

such individual is eligible for employment in the United States.

(2)

Requirement for participation

The Secretary shall require all employers in the United States to participate in the System, with respect to all employees hired by the employer on or after the date that is 18 months after the date that not less than $400,000,000 have been appropriated and made available to implement this subsection.

(3)

Other participation in system

Notwithstanding paragraph (2), the Secretary has the authority—

(A)

to permit any employer that is not required to participate in the System under paragraph (2) to participate in the System on a voluntary basis; and

(B)

to require any employer or class of employers to participate on a priority basis in the System with respect to individuals employed as of, or hired after, the date of enactment of the Comprehensive Immigration Reform Act of 2007

(i)

if the Secretary designates such employer or class of employers as a critical employer based on an assessment of homeland security or national security needs; or

(ii)

if the Secretary has reasonable cause to believe that the employer has engaged in material violations of paragraph (1), (2), or (3) of subsection (a).

(4)

Requirement to notify

The Secretary shall notify the employer or class of employers in writing regarding the requirement for participation in the System under paragraph (3)(B) not less than 60 days prior to the effective date of such requirement. Such notice shall include the training materials described in paragraph (8)(E)(v).

(5)

Registration of employers

An employer shall register the employer’s participation in the System in the manner prescribed by the Secretary prior to the date the employer is required or permitted to submit information with respect to an employee under this subsection.

(6)

Additional guidance

A registered employer shall be permitted to utilize any technology that is consistent with this section and with any regulation or guidance from the Secretary to streamline the procedures to facilitate compliance with—

(A)

the attestation requirement in subsection (c); and

(B)

the employment eligibility verification requirements in this subsection.

(7)

Consequence of failure to participate

If an employer is required to participate in the System and fails to comply with the requirements of the System with respect to an employee—

(A)

such failure shall be treated as a violation of subsection (a)(1)(B); and

(B)

a rebuttable presumption is created that the employer has violated subsection (a)(1)(A), however, such presumption may not apply to a prosecution under subsection (f)(1).

(8)

Design and operation of system

(A)

In general

The Secretary shall, through the System—

(i)

respond to each inquiry made by a registered employer through the Internet or other electronic media, or over a toll-free telephone line regarding an individual’s identity and eligibility for employment in the United States; and

(ii)

maintain a record of each such inquiry and the information provided in response to such inquiry.

(B)

Initial inquiry

(i)

Information required

A registered employer shall, with respect to the hiring, or recruiting or referring for a fee, any individual for employment in the United States, obtain from the individual and record on the form described in subsection (c)(1)(A)(i)—

(I)

the individual’s name and date of birth and, if the individual was born in the United States, the State in which such individual was born;

(II)

the individual’s social security account number;

(III)

the employment identification number of the individual’s employer during any one of the 5 most recently completed calendar years; and

(IV)

in the case of an individual who does not attest that the individual is a national of the United States under subsection (c)(1)(A)(i), such alien identification or authorization number that the Secretary shall require.

(ii)

Submission to system

A registered employer shall submit an inquiry through the System to seek confirmation of the individual’s identity and eligibility for employment in the United States—

(I)

not later than 3 days after the date of the hiring, or recruiting or referring for a fee, of the individual (as the case may be); or

(II)

in the case of an employee hired by a critical employer designated by the Secretary under paragraph (3)(B) at such time as the Secretary shall specify.

(iii)

Employer identification number requirements

(I)

Requirement to provide

An employer shall provide the employer identification number issued to such employer to the individual, upon request, for purposes of providing the information under clause (i)(III).

(II)

Requirement to affirmatively state a lack of recent employment

An individual providing information under clause (i)(III) who was not employed in the United States during any of the 5 most recently completed calendar years shall affirmatively state on the form described in subsection (c)(1)(A)(i) that no employer identification number is provided because the individual was not employed in the United States during such period.

(C)

Initial response

Not later than 10 days after an employer submits an inquiry to the System regarding an individual, the Secretary shall provide, through the System, to the employer—

(i)

if the System is able to confirm the individual’s identity and eligibility for employment in the United States, a confirmation notice, including the appropriate codes on such confirmation notice; or

(ii)

if the System is unable to confirm the individual’s identity or eligibility for employment in the United States, and after a secondary manual verification has been conducted, a tentative nonconfirmation notice, including the appropriate codes on such tentative nonconfirmation notice.

(D)

Confirmation or nonconfirmation

(i)

Confirmation upon initial inquiry

If an employer receives a confirmation notice under paragraph (C)(i) for an individual, the employer shall record, on the form described in subsection (c)(1)(A)(i), the appropriate code provided in such notice.

(ii)

Tentative nonconfirmation

If an employer receives a tentative nonconfirmation notice under paragraph (C)(ii) for an individual, the employer shall inform such individual of the issuance of such notice in writing, on a form prescribed by the Secretary not later than 3 days after receiving such notice. Such individual shall acknowledge receipt of such notice in writing on the form described in subsection (c)(1)(A)(i).

(iii)

No contest

If the individual does not contest the tentative nonconfirmation notice within 10 days of receiving notice from the individual’s employer, the notice shall become final and the employer shall record on the form described in subsection (1)(A)(i), the appropriate code provided through the System to indicate the individual did not contest the tentative nonconfirmation. An individual’s failure to contest a tentative nonconfirmation shall not be considered an admission of guilt with respect to any violation of this Act or any other provision of law.

(iv)

Contest

If the individual contests the tentative nonconfirmation notice, the individual shall submit appropriate information to contest such notice under the procedures established in subparagraph (E)(iii) not later than 10 days after receiving the notice from the individual’s employer.

(v)

Effective period of tentative nonconfirmation notice

A tentative nonconfirmation notice shall remain in effect until such notice becomes final under clause (iii), or the earlier of—

(I)

a final confirmation notice or final nonconfirmation notice is issued through the System; or

(II)

30 days after the individual contests a tentative nonconfirmation under clause (iv).

(vi)

Automatic final notice

(I)

In general

If a final notice is not issued within the 30-day period described in clause (v)(II), the Secretary shall automatically provide to the employer, through the System, the appropriate code indicating a final notice.

(II)

Period prior to initial certification

During the period beginning on the date of the enactment of the Comprehensive Immigration Reform Act of 2007 and ending on the date the Secretary submits the initial report described in subparagraph (E)(ii), an automatic notice issued under subclause (I) shall be a final confirmation notice.

(III)

Period after initial certification

After the date that the Secretary submits the initial report described in subparagraph (E)(ii), an automatic notice issued under subclause (I) shall be a final confirmation notice unless the most recent such report includes a certification that the System is able to correctly issue, within the period beginning on the date an employer submits an inquiry to the System and ending on the date an automatic default notice would be issued by the System, a final notice in at least 99 percent of the cases in which the notice relates to an individual who is eligible for employment in the United States. If the most recent such report includes such a certification, the automatic notice issued under subclause (I) shall be a final nonconfirmation notice.

(IV)

Additional authority

Notwithstanding the second sentence of subclause (III), the Secretary shall have the authority to issue a final confirmation notice for an individual who would be subject to a final nonconfirmation notice under such sentence. In such a case, the Secretary shall determine the individual’s eligibility for employment in the United States and record the results of such determination in the System within 12 months.

(vii)

Effective period of final notice

A final confirmation notice issued under this paragraph for an individual shall remain in effect—

(I)

during any continuous period of employment of such individual by such employer, unless the Secretary determines the final confirmation was the result of identity fraud; or

(II)

in the case of an alien authorized to be employed in the United States for a temporary period, during such period.

(viii)

Prohibition on termination

An employer may not terminate the employment of an individual based on a tentative nonconfirmation notice until such notice becomes final under clause (iii) or a final nonconfirmation notice is issued for the individual by the System. Nothing in this clause shall prohibit the termination of employment for any reason other than such tentative nonconfirmation.

(ix)

Recording of contest resolution

The employer shall record on the form described in subsection (c)(1)(A)(i) the appropriate code that is provided through the System to indicate a final confirmation notice or final nonconfirmation notice.

(x)

Consequences of nonconfirmation

If the employer has received a final nonconfirmation regarding an individual, the employer shall terminate the employment, recruitment, or referral of the individual. Such employer shall provide to the Secretary any information relating to the individual that the Secretary determines would assist the Secretary in enforcing or administering the immigration laws. If the employer continues to employ, recruit, or refer the individual after receiving final nonconfirmation, a rebuttable presumption is created that the employer has violated subsections (a)(1)(A) and (a)(2). Such presumption may not apply to a prosecution under subsection (f)(1).

(E)

Responsibilities of the secretary

(i)

In general

The Secretary shall establish a reliable, secure method to provide through the System, within the time periods required by this subsection—

(I)

a determination of whether the name and alien identification or authorization number provided in an inquiry by an employer is consistent with such information maintained by the Secretary in order to confirm the validity of the information provided; and

(II)

a determination of whether the individual is authorized to be employed in the United States.

(ii)

Annual report and certification

Not later than the date that is 24 months after the date that not less than $400,000,000 have been appropriated and made available to the Secretary to implement this subsection, and annually thereafter, the Secretary shall submit to Congress a report that includes—

(I)

an assessment of whether the System is able to correctly issue, within the period described in subparagraph (D)(v)(II), a final notice in at least 99 percent of the cases in which the final notice relates to an individual who is eligible for employment in the United States (excluding an individual who fails to contest a tentative nonconfirmation notice); and

(II)

if the assessment under subclause (I) is that the System is able to correctly issue within the specified time period a final notice in at least 99 percent of the cases described in such subclause, a certification of such assessment.

(iii)

Contest and self-verification

The Secretary in consultation with the Commissioner of Social Security, shall establish procedures to permit an individual who contests a tentative or final nonconfirmation notice, or seeks to verify the individual’s own employment eligibility prior to obtaining or changing employment, to contact the appropriate agency and, in a timely manner, correct or update the information used by the System.

(iv)

Information to employee

The Secretary shall develop a written form for employers to provide to individuals who receive a tentative or final nonconfirmation notice. Such form shall be made available in a language other than English, as necessary and reasonable, and shall include—

(I)

information about the reason for such notice;

(II)

the right to contest such notice;

(III)

contact information for the appropriate agency and instructions for initiating such contest; and

(IV)

a 24-hour toll-free telephone number to respond to inquiries related to such notice.

(v)

Training materials

The Secretary shall make available or provide to the employer, upon request, not later than 60 days prior to such employer’s participation in the System, appropriate training materials to facilitate compliance with this subsection, and sections 274B(a)(7) and 274C(a).

(F)

Responsibilities of the commissioner of social security

The responsibilities of the Commissioner of Social Security with respect to the System are set out in section 205(c)(2) of the Social Security Act.

(9)

Protection from liability

No employer that participates in the System shall be liable under any law for any employment-related action taken with respect to an individual in good faith reliance on information provided by the System.

(10)

Administrative review

(A)

In general

An individual who is terminated from employment as a result of a final nonconfirmation notice may, not later than 60 days after the date of such termination, file an appeal of such notice.

(B)

Procedures

The Secretary and Commissioner of Social Security shall develop procedures to review appeals filed under subparagraph (A) and to make final determinations on such appeals.

(C)

Review for errors

If a final determination on an appeal filed under subparagraph (A) results in a confirmation of an individual’s eligibility to work in the United States, the administrative review process shall require the Secretary to determine if the final nonconfirmation notice issued for the individual was the result of—

(i)

an error or negligence on the part of an employee or official operating or responsible for the System;

(ii)

the decision rules, processes, or procedures utilized by the System; or

(iii)

erroneous system information that was not the result of acts or omissions of the individual.

(D)

Compensation for error

(i)

In general

If the Secretary makes a determination under subparagraph (C) that the final nonconfirmation notice issued for an individual was not caused by an act or omission of the individual, the Secretary shall compensate the individual for lost wages.

(ii)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative review process described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first.

(E)

Limitation on compensation

For purposes of determining an individual’s compensation for the loss of employment, such compensation shall not include any period in which the individual was ineligible for employment in the United States.

(F)

Source of funds

Compensation or reimbursement provided under this paragraph shall not be provided from funds appropriated in annual appropriations Acts to the Secretary for the Department of Homeland Security.

(11)

Judicial review

(A)

In general

After the Secretary makes a final determination on an appeal filed by an individual under the administrative review process described in paragraph (10), the individual may obtain judicial review of such determination by a civil action commenced not later than 60 days after the date of such decision, or such further time as the Secretary may allow.

(B)

Jurisdiction

A civil action for such judicial review shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has a principal place of business, or, if the plaintiff does not reside or have a principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia.

(C)

Answer

As part of the Secretary’s answer to a complaint for such judicial review, the Secretary shall file a certified copy of the administrative record compiled during the administrative review under paragraph (10), including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming or reversing the result of that administrative review, with or without remanding the cause for a rehearing.

(D)

Compensation for error

(i)

In general

In cases in which such judicial review reverses the final determination of the Secretary made under paragraph (10), the court shall compensate the individual for lost wages.

(ii)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work scheduled that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the judicial review described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first.

(12)

Limitation on collection and use of data

(A)

Limitation on collection of data

(i)

In general

The System shall collect and maintain only the minimum data necessary to facilitate the successful operation of the System, and in no case shall the data be other than—

(I)

information necessary to register employers under paragraph (5);

(II)

information necessary to initiate and respond to inquiries or contests under paragraph (8);

(III)

information necessary to establish and enforce compliance with paragraphs (5) and (8);

(IV)

information necessary to detect and prevent employment related identity fraud; and

(V)

such other information the Secretary determines is necessary, subject to a 180 day notice and comment period in the Federal Register.

(ii)

Penalties

Any officer, employee, or contractor who willfully and knowingly collects and maintains data in the System other than data described in clause (i) shall be guilty of a misdemeanor and fined not more than $1,000 for each violation.

(B)

Limitation on use of data

Whoever willfully and knowingly accesses, discloses, or uses any information obtained or maintained by the System—

(i)

for the purpose of committing identity fraud, or assisting another person in committing identity fraud, as defined in section 1028 of title 18, United States Code;

(ii)

for the purpose of unlawfully obtaining employment in the United States or unlawfully obtaining employment in the United States for any other person; or

(iii)

for any purpose other than as provided for under any provision of law;

shall be guilty of a felony and upon conviction shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both.
(C)

Exceptions

Nothing in subparagraph (A) or (B) may be construed to limit the collection, maintenance, or use of data by the Commissioner of Internal Revenue or the Commissioner of Social Security as provided by law.

(13)

Modification authority

The Secretary, after notice is submitted to Congress and provided to the public in the Federal Register, is authorized to modify the requirements of this subsection with respect to completion of forms, method of storage, attestations, copying of documents, signatures, methods of transmitting information, and other operational and technical aspects to improve the efficiency, accuracy, and security of the System.

(14)

Annual gao study and report

(A)

Requirement

The Comptroller General of the United States shall conduct an annual study of the System.

(B)

Purpose

The study shall evaluate the accuracy, efficiency, integrity, and impact of the System.

(C)

Report

Not later than the date that is 24 months after the date that not less than $400,000,000 have been appropriated and made available to the Secretary to implement this subsection, and annually thereafter, the Comptroller General shall submit to Congress a report containing the findings of the study carried out under this paragraph. Each such report shall include, at a minimum, the following:

(i)

An assessment of the annual report and certification described in paragraph (8)(E)(ii).

(ii)

An assessment of System performance with respect to the rate at which individuals who are eligible for employment in the United States are correctly approved within each of the periods specified in paragraph (8), including a separate assessment of such rate for nationals and aliens.

(iii)

An assessment of the privacy and security of the System and its effects on identity fraud or the misuse of personal data.

(iv)

An assessment of the effects of the System on the employment of unauthorized aliens.

(v)

An assessment of the effects of the System, including the effects of tentative confirmations, on unfair immigration-related employment practices and employment discrimination based on national origin or citizenship status.

(vi)

An assessment of whether the Secretary and the Commissioner of Social Security have adequate resources to carry out the duties and responsibilities of this section.

(e)

Compliance

(1)

Complaints and investigations

The Secretary shall establish procedures—

(A)

for individuals and entities to file complaints regarding potential violations of subsection (a);

(B)

for the investigation of such complaints that the Secretary determines are appropriate to investigate; and

(C)

for the investigation of other violations of subsection (a) that the Secretary determines is appropriate.

(2)

Authority in investigations

(A)

In general

In conducting investigations and hearings under this subsection, officers and employees of the Department of Homeland Security—

(i)

shall have reasonable access to examine evidence regarding any employer being investigated; and

(ii)

if designated by the Secretary, may compel by subpoena the attendance of witnesses and the production of evidence at any designated place in an investigation or case under this subsection.

(B)

Failure to cooperate

In case of refusal to obey a subpoena lawfully issued under subparagraph (A)(ii), the Secretary may request that the Attorney General apply in an appropriate district court of the United States for an order requiring compliance with such subpoena, and any failure to obey such order may be punished by such court as contempt.

(C)

Department of labor

The Secretary of Labor shall have the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)) to ensure compliance with the provisions of this section.

(3)

Compliance procedures

(A)

Prepenalty notice

If the Secretary has reasonable cause to believe that there has been a violation of a requirement of this section and determines that further proceedings related to such violation are warranted, the Secretary shall issue to the employer concerned a written notice of the Secretary’s intention to issue a claim for a fine or other penalty. Such notice shall—

(i)

describe the violation;

(ii)

specify the laws and regulations allegedly violated;

(iii)

specify the amount of fines or other penalties to be imposed;

(iv)

disclose the material facts which establish the alleged violation; and

(v)

inform such employer that the employer shall have a reasonable opportunity to make representations as to why a claim for a monetary or other penalty should not be imposed.

(B)

Remission or mitigation of penalties

(i)

Review by secretary

If the Secretary determines that such fine or other penalty was incurred erroneously, or determines the existence of such mitigating circumstances as to justify the remission or mitigation of such fine or penalty, the Secretary may remit or mitigate such fine or other penalty on the terms and conditions as the Secretary determines are reasonable and just, or order termination of any proceedings related to the notice.

(ii)

Applicability

This subparagraph may not apply to an employer that has or is engaged in a pattern or practice of violations of paragraph (1), (2), or (3) of subsection (a) or of any other requirements of this section.

(C)

Penalty claim

After considering evidence and representations offered by the employer, the Secretary shall determine whether there was a violation and promptly issue a written final determination setting forth the findings of fact and conclusions of law on which the determination is based and the appropriate penalty.

(4)

Civil penalties

(A)

Hiring or continuing to employ unauthorized aliens

Any employer that violates any provision of paragraph (1), (2), or (3) of subsection (a) shall pay civil penalties as follows:

(i)

Pay a civil penalty of not less than $500 and not more than $4,000 for each unauthorized alien with respect to each such violation.

(ii)

If the employer has previously been fined 1 time during the 12-month period preceding the violation under this subparagraph, pay a civil penalty of not less than $4,000 and not more than $10,000 for each unauthorized alien with respect to each such violation.

(iii)

If the employer has previously been fined more than 1 time during the 24-month period preceding the violation under this subparagraph or has failed to comply with a previously issued and final order related to any such provision, pay a civil penalty of not less than $6,000 and not more than $20,000 for each unauthorized alien with respect to each such violation.

(B)

Recordkeeping or verification practices

Any employer that violates or fails to comply with the recordkeeping requirements of subsections (a), (c), and (d), shall pay a civil penalty as follows:

(i)

Pay a civil penalty of not less than $200 and not more than $2,000 for each such violation.

(ii)

If the employer has previously been fined 1 time during the 12-month period preceding the violation under this subparagraph, pay a civil penalty of not less than $400 and not more than $4,000 for each such violation.

(iii)

If the employer has previously been fined more than 1 time during the 24-month period preceding the violation under this subparagraph or has failed to comply with a previously issued and final order related to such requirements, pay a civil penalty of not less than $600 and not more than $6,000 for each such violation.

(C)

Other penalties

Notwithstanding subparagraphs (A) and (B), the Secretary may impose additional penalties for violations, including violations of cease and desist orders, specially designed compliance plans to prevent further violations, suspended fines to take effect in the event of a further violation, and in appropriate cases, the criminal penalty described in subsection (f).

(5)

Judicial review

An employer adversely affected by a final determination may, within 45 days after the date the final determination is issued, file a petition in any appropriate district court of the United States. The filing of a petition as provided in this paragraph shall stay the Secretary’s determination until entry of judgment by the court. The burden shall be on the employer to show that the final determination was not supported by substantial evidence. The Secretary is authorized to require that the petitioner provide, prior to filing for review, security for payment of fines and penalties through bond or other guarantee of payment acceptable to the Secretary.

(6)

Enforcement of orders

If an employer fails to comply with a final determination issued against that employer under this subsection, and the final determination is not subject to review as provided in paragraph (5), the Attorney General may file suit to enforce compliance with the final determination, not earlier than 46 days and not later than 180 days after the date the final determination is issued, in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final determination shall not be subject to review.

(7)

Recovery of costs and attorney’s fees

In any appeal brought under paragraph (5) or suit brought under paragraph (6) of this section the employer shall be entitled to recover from the Secretary reasonable costs and attorney’s fees if such employer substantially prevails on the merits of the case. Such an award of attorney’s fees may not exceed $25,000. Any such costs and attorney’s fees assessed against the Secretary shall be charged against the operating expenses of the Department for the fiscal year in which the assessment is made, and may not be reimbursed from any other source.

(f)

Criminal Penalties and Injunctions for Pattern or Practice Violations

(1)

Criminal penalty

An employer that engages in a pattern or practice of knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $20,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than 3 years for the entire pattern or practice, or both.

(2)

Enjoining of pattern or practice violations

If the Secretary or the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of employment, recruitment, or referral in violation of paragraph (1)(A) or (2) of subsection (a), the Attorney General may bring a civil action in the appropriate district court of the United States requesting a permanent or temporary injunction, restraining order, or other order against the employer, as the Secretary deems necessary.

(g)

Adjustment for Inflation

All penalties and limitations on the recovery of costs and attorney’s fees in this section shall be increased every 4 years beginning January 2010 to reflect the percentage increase in the consumer price index for all urban consumers (all items; U.S. city average) for the 48-month period ending with September of the year preceding the year such adjustment is made. Any adjustment under this subparagraph shall be rounded to the nearest dollar.

(h)

Prohibition of Indemnity Bonds

(1)

Prohibition

It is unlawful for an employer, in the hiring, recruiting, or referring for a fee, of an individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring, recruiting, or referring of the individual.

(2)

Civil penalty

Any employer which is determined, after notice and opportunity for mitigation of the monetary penalty under subsection (e), to have violated paragraph (1) of this subsection shall be subject to a civil penalty of $10,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the employee or, if the employee cannot be located, to the Employer Compliance Fund established under section 286(w).

(i)

Prohibition on Award of Government Contracts, Grants, and Agreements

(1)

Employers with no contracts, grants, or agreements

(A)

In general

If an employer who does not hold a Federal contract, grant, or cooperative agreement is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, the employer shall be debarred from the receipt of a Federal contract, grant, or cooperative agreement for a period of 5 years. The Secretary 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 period of 5 years.

(B)

Waiver

The Administrator of General Services, in consultation with the Secretary and the Attorney General, may waive operation of this subsection or may limit the duration or scope of the debarment.

(2)

Employers with contracts, grants, or agreements

(A)

In general

An employer who holds a Federal contract, grant, or cooperative agreement and is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, shall be debarred from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.

(B)

Notice to agencies

Prior to debarring the employer under subparagraph (A), the Secretary, in cooperation with the Administrator of General Services, shall advise any agency or department holding a contract, grant, or cooperative agreement with the employer of the Government’s intention to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.

(C)

Waiver

After consideration of the views of any agency or department that holds a contract, grant, or cooperative agreement with the employer, the Secretary may, in lieu of debarring the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years, waive operation of this subsection, 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. However, any proposed debarment predicated on an administrative determination of liability for civil penalty by the Secretary or the Attorney General shall not be reviewable in any debarment proceeding. The decision of whether to debar or take alternate action under this subparagraph shall not be judicially reviewed.

(3)

Suspension

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

(j)

Miscellaneous Provisions

(1)

Documentation

In providing documentation or endorsement of authorization of aliens eligible to be employed in the United States, the Secretary shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement (other than aliens lawfully admitted for permanent residence).

(2)

Preemption

The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

(k)

Deposit of Amounts Received

Except as otherwise specified, civil penalties collected under this section shall be deposited by the Secretary into the Employer Compliance Fund established under section 286(w).

(l)

Definitions

In this section:

(1)

Employer

The term employer means any person or entity, including any entity of the Government of the United States, hiring, recruiting, or referring an individual for employment in the United States.

(2)

Secretary

Except as otherwise provided, the term Secretary means the Secretary of Homeland Security.

(3)

Unauthorized alien

The term unauthorized alien means, with respect to the employment of an alien at a particular time, that the alien is not at that time either—

(A)

an alien lawfully admitted for permanent residence; or

(B)

authorized to be so employed by this Act or by the Secretary.

.

(b)

Conforming Amendments

(1)

Amendments

(A)

Repeal of basic pilot

Sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) are repealed.

(B)

Repeal of reporting requirements

(i)

Report on earnings of aliens not authorized to work

Subsection (c) of section 290 (8 U.S.C. 1360) is repealed.

(ii)

Report on fraudulent use of social security account numbers

Subsection (b) of section 414 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1360 note) is repealed.

(2)

Construction

Nothing in this subsection or in subsection (d) of section 274A, as amended by subsection (a), may be construed to limit the authority of the Secretary to allow or continue to allow the participation of employers who participated in the basic pilot program under sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) in the Electronic Employment Verification System established pursuant to such subsection (d).

(c)

Technical Amendments

(1)

Definition of unauthorized alien

Sections 218(i)(1) (8 U.S.C. 1188(i)(1)), 245(c)(8) (8 U.S.C. 1255(c)(8)), 274(a)(3)(B)(i) (8 U.S.C. 1324(a)(3)(B)(i)), and 274B(a)(1) (8 U.S.C. 1324b(a)(1)) are amended by striking 274A(h)(3) and inserting 274A.

(2)

Document requirements

Section 274B (8 U.S.C. 1324b) is amended—

(A)

in subsections (a)(6) and (g)(2)(B), by striking 274A(b) and inserting 274A(c) and (d); and

(B)

in subsection (g)(2)(B)(ii), by striking 274A(b)(5) and inserting 274A(c).

(d)

Amendments to the Social Security Act

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:

(I)
(i)

The Commissioner of Social Security shall, subject to the provisions of section 301(f)(2) of the Comprehensive Immigration Reform Act of 2007, establish a reliable, secure method to provide through the Electronic Employment Verification System established pursuant to subsection (d) of section 274A of the Immigration and Nationality Act (referred to in this subparagraph as the System), within the time periods required by paragraph (8) of such subsection—

(I)

a determination of whether the name, date of birth, employer identification number, and social security account number of an individual provided in an inquiry made to the System by an employer is consistent with such information maintained by the Commissioner in order to confirm the validity of the information provided;

(II)

a determination of the citizenship status associated with such name and social security account number, according to the records maintained by the Commissioner;

(III)

a determination of whether the name and number belongs to an individual who is deceased, according to the records maintained by the Commissioner;

(IV)

a determination of whether the name and number is blocked in accordance with clause (ii); and

(V)

a confirmation notice or a nonconfirmation notice described in such paragraph (8), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.

(ii)

The Commissioner of Social Security shall prevent the fraudulent or other misuse of a social security account number by establishing procedures under which an individual who has been assigned a social security account number may block the use of such number under the System and remove such block.

(J)

In assigning social security account numbers to aliens who are authorized to work in the United States under section 218A of the Immigration and Nationality Act, the Commissioner of Social Security shall, to the maximum extent practicable, assign such numbers by employing the enumeration procedure administered jointly by the Commissioner, the Secretary of State, and the Secretary.

.

(e)

Disclosure of Certain Taxpayer Identity Information

(1)

In general

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

(21)

Disclosure of certain taxpayer identity information by social security administration to department of homeland security

(A)

In general

From taxpayer identity information which has been disclosed to the Social Security Administration and upon written request by the Secretary of Homeland Security, the Commissioner of Social Security shall disclose directly to officers, employees, and contractors of the Department of Homeland Security the following information:

(i)

Disclosure of employer no-match notices

Taxpayer identity information of each person who has filed an information return required by reason of section 6051 during calendar year 2006, 2007, or 2008 which contains—

(I)

more than 100 names and taxpayer identifying numbers of employees (within the meaning of such section) that did not match the records maintained by the Commissioner of Social Security, or

(II)

more than 10 names of employees (within the meaning of such section) with the same taxpayer identifying number.

(ii)

Disclosure of information regarding use of duplicate employee taxpayer identifying information

Taxpayer identity information of each person who has filed an information return required by reason of section 6051 which the Commissioner of Social Security has reason to believe, based on a comparison with information submitted by the Secretary of Homeland Security, contains evidence of identity fraud due to the multiple use of the same taxpayer identifying number (assigned under section 6109) of an employee (within the meaning of section 6051).

(iii)

Disclosure of information regarding nonparticipating employers

Taxpayer identity information of each person who has filed an information return required by reason of section 6051 which the Commissioner of Social Security has reason to believe, based on a comparison with information submitted by the Secretary of Homeland Security, contains evidence of such person’s failure to register and participate in the Electronic Employment Verification System authorized under section 274A(d) of the Immigration and Nationality Act (hereafter in this paragraph referred to as the System).

(iv)

Disclosure of information regarding new employees of nonparticipating employers

Taxpayer identity information of all employees (within the meaning of section 6051) hired after the date a person identified in clause (iii) is required to participate in the System under section 274A(d)(2) or section 274A(d)(3)(B) of the Immigration and Nationality Act.

(v)

Disclosure of information regarding employees of certain designated employers

Taxpayer identity information of all employees (within the meaning of section 6051) of each person who is required to participate in the System under section 274A(d)(3)(B) of the Immigration and Nationality Act.

(vi)

Disclosure of new hire taxpayer identity information

Taxpayer identity information of each person participating in the System and taxpayer identity information of all employees (within the meaning of section 6051) of such person hired during the period beginning with the later of—

(I)

the date such person begins to participate in the System, or

(II)

the date of the request immediately preceding the most recent request under this clause,

ending with the date of the most recent request under this clause.
(B)

Restriction on disclosure

The Commissioner of Social Security shall disclose taxpayer identity information under subparagraph (A) only for purposes of, and to the extent necessary in—

(i)

establishing and enforcing employer participation in the System,