Section-by-Section Summary of the Senate “Grand Bargain” Bill (WORKING DRAFT AS OF 05/21/2007)

VIA AILA

WORKING DRAFT 5/21/07

With the exception of the probationary benefits conferred by Section 601(h), relating to Z visas, and the admission of Y aliens under 101(a)(15)(Y)(ii)(I), the effective date of the Programs established by Title IV and Title VI, is the date the Secretary certifies in writing to the President and Congress that the following measures are funded, in place, and in operation:

1. Staff Enhancements for Border Patrol: CBP has increased the number of agents and support staff to 18,000 agents.

2. Strong Border barriers: The installation of at least 200 miles of vehicle barriers; 370 miles of fencing; and 70 ground-based radar and camera towers along the southern border, and 4 unmanned aerial vehicles.

3. Catch and Return: The detention and apprehension of all removable aliens apprehended crossing the southern border, except as specifically ‘mandated’ by law or humanitarian circumstances, and that ICE has the resources to maintain this practice, including resources to detain up to 27,500 non-citizens per day on an annual basis.

4. Workplace Enforcement Tools: DHS is using secure and effective identification tools to prevent unauthorized workers from obtaining jobs in the U.S. including the use of secure documentation that contains a photograph, biometrics, and/or complies with the REAL ID Act; and an electronic employment eligibility verification system that queries federal and state databases to restrict fraud, identity theft, and use of false social security numbers in the hiring process.

5. Processing applications of Aliens: DHS must be processing applications for Z status in a timely manner, including the background and security checks.

It is the sense of Congress that the border security and other measures can be completed within 18 months of enactment. The President must submit a report to Congress 90 days after enactment and every 90 days thereafter, detailing progress made in funding, appropriating and contractual agreements. The President must include specific spending recommendations if not enough progress is being made.

Sec. 101. Additional Personnel. Sec. 101 requires the hiring of additional border personnel, subject to availability of appropriations in each FY from 2008 – 2012:

• CBP: An increase of not less 500 CBP officers, training, equipment and support;

• Investigative personnel: An increase of not less than 200 the number of positions for personnel within the Department assigned to investigate alien smuggling;

• U.S. Deputy Marshalls: An increase of not less than 50 U.S. Deputy Marshalls;

• Recruitment of former military personnel: CBP and DOD must recruit members of military who have separated from active duty and report to Congress on the implementation of such a recruitment program not later than 180 days after enactment.

• Annual Increases: The following increase in the number of positions for FYs 2008 through 2012 by not less than:

• 2,000 in FY 2007;

• 2,400 in FYs 2008 – 2012

• Northern Border: For FYs 2008-2012, the Secretary must assign a number of border patrol agents equal to not less than 20 percent of the net increase in border patrol agents, in addition to the border patrol agents assigned to the northern border during the previous fiscal year.

Sec. 102. Technological Assets. Requires an increase in technological assets, such as unmanned aerial vehicles, cameras, sensors, poles, and other technologies to achieve operational control of the U.S. border.

Sec. 103. Infrastructure. Requires the Secretary to construct 14 miles of fencing near the San Diego border, starting at the Pacific Ocean and extending eastward, of second and third fences, in addition to the existing reinforced fence.

Sec. 104. Ports of Entry. Authorizes the Secretary to construct additional ports of entry along the U.S. international land border, as necessary, and to make improvements of existing ones.

Sec. 111. Biometric Entry-Exit System Requires the collection of biometric data and other information relating to immigration status, from aliens departing and entering the U.S. Inspection of data of applicants for admission: Immigration agents are authorized to collect biometric data from: applicants for admission; aliens who are paroled under section 212(d)(5); aliens seeking to land temporarily as alien crewmen; aliens seeking to transit through the U.S.; or to any lawful permanent resident entering the United States and who is not regarded as seeking admission pursuant to section 101(a)(13)(C). Refusal to provide biometric information when requested is a ground of inadmissibility, which can be waived by the Secretary. In fully implementing the biometric system, neither the APA nor other law relating to rulemaking, information collection or publication in the Federal Register has to be followed in implementing the entry and exit system.

Section 112. Unlawful Flight From Immigration or Customs Controls Evading a checkpoint: Anyone operating a motor vehicle or vessel who knowingly evades a checkpoint operated by DHS and knowingly or recklessly disregards or disobeys a lawful command of any law enforcement agent, can be imprisoned not more than 5 years, fined, or both. Failure to stop:

Anyone who fails to obey a DHS officer, can be fined, imprisoned not more than 2 years, or both. Alternate penalties: If person speeds or operates vehicle or vessel in dangerous or reckless manner, person can be fined or imprisoned for a period of not more than 10 years, or both. If violation creates a substantial and foreseeable risk of serious bodily injury or death, penalty is imprisonment of not more than 20 years, or a fine, or both. If violation caused serious bodily injury to anyone, person can be imprisoned 30 years or fined or both. If violation results in death, person can be fined, imprisoned for any term of years to life, or both. Conspirators are treated the same as the offender. Forfeiture procedures are laid out and definitions for terms used, are provided.

Section 113. Release of Aliens from Noncontiguous Territories. Amends 236(a)(2) relating to the apprehension and detention of aliens and provides that nationals of noncontiguous territories who have not been admitted or paroled, who are apprehended within 100 miles of the border or present a ‘flight risk’ may be released upon paying a bond of not less than $5000. There is no exception for asylum seekers who have passed credible fear determination.

Sec. 114. Seizure of Conveyance with Concealed Compartment: Expanding the definition of conveyances with hidden compartments subject to forfeiture. Amends Title 19 re the seizure and forfeiture of vehicles, vessels and other conveyances and instruments of international traffic and describes what acts constitute prima facie evidence of vehicles that are engaged in smuggling.

Sec. 121. Deaths at the United States-Mexico Border. The CBP Commissioner must collect statistics on the total number of and causes of death. A report must be submitted that analyzes trends and makes recommendations to reduce the deaths.

Sec. 122. Border Security on Certain Federal Land. Defines “protected land” and “Secretary concerned” and authorizes additional CBP personnel, federal land resource training for CBP agents and unmanned aerial vehicles, remote video surveillance camera systems and sensors to gain operational control over international land borders of the U.S. and to prevent the entry of terrorists, unlawful aliens, narcotics, and other contraband into the U.S. Training is to be coordinated with the National Park Service, the US Fish and Wildlife Service or whatever relevant agency within the Dept. of the Interior. Damage to protected land related to illegal border activity must be analyzed and recommendations made re the appropriate cost recovery mechanism. A Border Protection Strategy must be developed jointly with Secretary and Secretaries of the Interior and the Secretary of Agriculture in a manner that bests protects the homeland.

Sec. 123 Secure Communication. Secretary is required to develop and implement a plan to improve the use of satellite communications and other means to ensure clear and secure two-way communication capabilities, among all Border Patrol agents and between all appropriate border security agencies of the Department and State, local and tribal law enforcement agencies.

Sec. 124. Unmanned Aircraft. Systems. Secretary must acquire and maintain additional unmanned aircraft for use on the border.

Sec. 125. Surveillance Technologies Programs. Secretary must develop a program to fully integrate and utilize aerial surveillance technologies, including unmanned aerial vehicles to enhance the international borders between the U.S. and Mexico and Canada, with the goal of ensuring continuous monitoring of each mile of the border. The Secretary must analyze current and proposed aerial surveillance technologies in consultation with numerous other agencies. Requires the use of a variety of aerial surveillance technologies. Secretary must also establish an “Integrated and Automated Surveillance Program” to procure additional unmanned aerial vehicles, cameras, sensors, poles, radar coverage and other technologies to achieve operational control of the border. In addition, the Secretary must develop appropriate standards to evaluate the performance of any contractor providing goods and services to carry out Integrated Program.

Sec. 126 Surveillance Plan. The Secretary must develop a comprehensive plan that includes, for example, assessments of existing technologies, a description of the compatibility of new surveillance with existing ones, and descriptions of the kind of surveillance to be employed.

Sec. 127. National Strategy for Border Security. Sec. 127 describes a very lengthy strategy for national security, which must include an implementation schedule, an assessment of the threat, a risk assessment for all U.S. ports of entry, an assessment of the legal requirements that prevent achieving operational control over the entire international land and maritime borders of the U.S., and an assessment of the most appropriate, practical and cost effective means of defending the borders. There are 13 points that must be included in the National Strategy.

Sec. 128. Border Patrol Training Capacity Review. The Comptroller General must conduct a study of the basic training provided to Border Patrol agents by DHS to ensure that such training is provided as efficiently and cost-effectively as possible.

Sec. 129. Biometric Data Enhancements. Requires the Secretary, not later than October 1, 2008, in consultation with the Attorney General, to enhance connectivity between the Automated Biometric Fingerprint Identification [IDENT] and Integrated Automated Fingerprint Identification System [IAFIS] to ensure expeditious searches and that all fingerprints are entered in the integrated entry and exit data system.

Sec. 130. U.S. Visit System. Requires DHS to submit a timeline for equipping all land borders with the US-VISIT entry/exit system; for developing and deploying the exit component of the US-VISIT system at all land borders; and for making all border screening systems interoperable.

Sec. 131. Document Fraud Detection. The Secretary is required to provide training to CBP officers on identifying and detecting fraudulent travel documents; to provide all CBP officers with access to the Forensic Documents Laboratory; and to require an assessment of and report to Congress on the Forensic Document Laboratory. It authorizes the appropriation of such sums as may be necessary to carry out the section.

Sec. 132. Border Relief Grant Program. The Secretary is authorized to award competitive grants, subject to the availability of appropriations, to eligible law enforcement agencies to assist such agencies in addressing: (1) criminal activity that occurs in their jurisdictions due to their proximity to the border, and (2) the impact of any lack of security along the border. Funds may only be used to provide additional resources such as, equipment, additional personnel, technology, and operational costs such as transportation and overtime.

Sec. 133. Port of Entry Infrastructure Assessment Study. Reports must be submitted not later than January 31 of every year, in consultation with USCBP to identify the port of entry infrastructure and technology improvement projects that would enhance border security and facilitate the flow of legitimate commerce if implemented.

Sec. 134. National Land Border Security Plan. The Secretary is required prepare a report regarding the vulnerability assessment of each port of entry located on the northern or southern border.

Sec. 135. Port of Entry Technology Demonstration. The Secretary must carry out a technology demonstration program to test, refine, and evaluate new port of entry technologies and to train personnel under realistic conditions. Detailed requirements regarding the testing facilities, the technology, the demonstration sites, and the different requirements are laid out.

Sec. 136. Combating Human Smuggling. Requires ICE, CBP, and other Federal, state, local, and tribal authorities to improve coordination efforts to combat smuggling, to include interoperability of data bases, personnel training, programs to target networks engaged in smuggling, and utilization of visas for victims of trafficking and other crimes and joint measures with the Secretary of State to enhance intelligence sharing. A report must be submitted to Congress not later than one year after implementing the plan.

Sec. 137. 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. Requires the Secretary to construct or acquire, in addition to existing facilities, at least 20 detention facilities with enough capacity to detain a combined total of not less than 20000 individuals at any time, for aliens detained pending removal or a decision of removal. The Secretary is also required to fully utilize all possible options to cost effectively increase available detention capacities.

Sec. 143. United States-Mexico Border Enforcement Review Commission. A new Commission to be called the United States-Mexico Border Enforcement Review Commission” which will study overall enforcement strategies, programs and policies. The Commission shall have 17 voting members who will be appointed and who will consist of the Governors of California, New Mexico, Arizona, and Texas, in addition to other members. Not more than 2 members of the Commission appointed by the Governors may be members of the same political party. The Commission shall make recommendations regarding border enforcement policies, strategies and programs, including recommendations regarding: the protection of human and civil rights of community residents and migrants along the international border between the U.S. and Mexico; cross border traffic; the effect on the environment of enforcement operations along the border; cross border traffic and commerce, among others. Members on the Commission shall

not receive pay. Not later than two years after the date of the first meeting, the Commission shall submit a report to the President. The Commission sunsets 90 days after the report is submitted to the President, unless it is reauthorized.

Sec. 201. Additional Immigration Personnel. Increases in personnel in each of the FY 2008 – 2012, subject to availability of appropriations, as follows:

• DHS – trial attorneys and USCIS adjudicators, not less than 100 compared to the number of such positions for which funds were made available in the preceding year.

• DOJ – law clerks for immigration judges and BIA members, not less than one per judge and member;

• Attorneys for Office of Immigration Litigation and for U.S. Attorneys – not less than 50 compared to the number of such positions for which funds were made available in the preceding fiscal year;

• Immigration judges – increase by not less than 20 the number of full-time immigration judges and by not less than 80 the number of positions for personnel to support the immigration judges, compared to the number of such positions for which funds were made available during preceding fiscal year;

• BIA members – increase by 10, the number of Board members over the number of members serving on the date of enactment; BIA staff attorneys, increase by not less than 20 compared to the number of such positions for which funds were made available during the preceding fiscal year and increase the number of support personnel to support them by not less than 10 compared to the number of such positions for which funds were made available during the preceding fiscal year.

• Administrative Office of the U.S. Courts – increase the number of attorneys in Federal Defenders Program who litigate criminal immigration cases by not less than 50 compared to the number of such positions for which funds were made available during the preceding fiscal year.

• Legal Orientation Program, shall continue to be operated by the Director of EOIR, to provide basic immigration information on a nationwide basis.

Sec. 202. Detention and Removal of Aliens Ordered Removed. Amends section 241(a) of the INA.

• Beginning of period: removal date is the expiration date of the stay of removal if a court, the BIA or an immigration judge orders a stay of removal.

• Extension of Period: Removal period is extended beyond 90 days and the alien may remain in custody during the extended removal period if:

o the alien fails to make all reasonable efforts to comply with the removal order, or

o does not fully cooperate with efforts to establish alien’s identity and carry out removal order including failing to make timely application in good faith for travel.

• Tolling of period: If the alien is not in custody, the removal period does not begin until the alien is taken into custody.

o If the Secretary transfers custody to another Federal agency, a state or local government agency, the removal period is tolled and begins on the date on which the alien is returned to the Secretary’s custody.

o If a court, the BIA or immigration judge order a stay of removal of an alien subject to an administrative final order of removal, the Secretary may detain the alien during the pendency of such stay of removal.

• Supervision after 90 day period: Alien subject to supervision must obey reasonable restrictions or perform affirmative acts to prevent alien from absconding; for protection of community; or other purposes related to enforcement of immigration laws.

• Parole: Applicants for admission may be paroled and not returned to custody unless the alien 1) violates conditions of parole; or 2) removal becomes reasonably foreseeable.

• Additional Rules for Detention or Release:

o Secretary must establish Administrative Review Process for aliens who effected an entry and cooperate with removal process to determine whether alien should be detained or released. Secretary may consider any evidence submitted by alien and any other evidence submitted by DOS or other Federal agency.

• Detention beyond 90 day removal period**: Authorized in Secretary’s discretion until alien’s removal if significant likelihood exists that alien will be removed in reasonable foreseeable future or if certification in writing that

o 1) alien has highly contagious disease;

o 2) that release of alien would have serious adverse foreign policy consequences; 3) there is reason to believe that release would threaten national security of U.S.; 4) that release of alien would threaten safety of community or any person and that conditions of release will not reasonably be expected to ensure safety of community or person and

􀂃 alien was convicted of 1 or more aggravated felonies or of conspiracy to do so for aggregate term of imprisonment of at least 5 years; or

􀂃 alien committed a crime of violence and due to mental condition or personality disorder is likely to engage in acts of violence in the future; or that release would threaten safety of community or any person and alien was convicted of 1 or more aggravated felonies for which alien was sentenced to an aggregate term of imprisonment of not less than 1 year. ** This period is now 6 months under Zadvydas

o Attorney General May Review extension of removal detention. AG and Secretary shall promulgate regulations.

o Renewal and Certification: Secretary may renew certification every 6 months. If certification not renewed, alien shall be released. If Secretary authorizes an extension of detention, alien may seek review before AG. Secretary may request that AG provide a hearing.

• Redetention: Authorized if alien does not comply with conditions of release or if Secretary determines that alien can be detained.

• Detention and Review Process for aliens who effected an entry and fail to cooperate: Alien must be detained until alien makes all reasonable efforts to comply with removal order and to cooperate fully with Secretary’s efforts.

• Review process for Aliens who have not effected an entry: Secretary shall follow guidelines in 8 CFR 241.4 when detaining aliens who have not effected an entry. May also follow the guidelines presented here.

• Judicial review of any action or decision regarding detention and review restricted to habeas petitions in the U.S. District Courts and only where all administrative remedies have been satisfied.

• Effective Date: Date of enactment and shall apply to any alien subject to a final administrative removal, deportation or exclusion order that was issued before, on or after the date of enactment unless (a) that order was issued and the alien was subsequently released or paroled before the enactment of this Act and (b) the alien has complied with and remains in compliance with the terms and conditions of that release or parole; and (ii) any act or condition occurring or existing before, on, or after the date of the enactment of this Act.

• Sec. 203. Aggravated Felony. Amends definition of “Aggravated Felony”. Definition applies to any offense, Federal or State, or a violation of the law in a foreign country for which a term of imprisonment was completed within the previous 15 years, and regardless of whether the conviction was entered on, before or after September 30, 1996. It also provides that the murder, rape, or sexual abuse of a minor will be considered an aggravated felony whether or not the minority of the victim is established by evidence contained in the record of conviction or by extrinsic evidence.

• Amends the alien smuggling aggravated felony ground to include all of INA § 274(a), relating to alien smuggling. Exception for first offense for assisting immediate family remains intact.

• The amendments take effect on the date of enactment. IIRAIRA amendments to the Act shall continue to apply whether the conviction occurred on, before, or after the date of enactment.

Sec. 205. Increased Criminal Penalties Related to Gang Violence and Removal. Adds the term “Criminal Gang” to the list of definitions in the Act. This section defines “Criminal Gang” as an “ongoing group, club, organization or association of 5 or more persons that has as one of its primary purposes the commission of one or more of the criminal offenses as described below and the members of which engage, or have engaged within the past 5 years in a continuing series of offenses. The list of offenses under Federal or State law and regardless of whether charged, and whether committed before, on, or after the effective date, include:

• felony drug offenses;

• felony offense involving firearms or explosives;

• offenses under sections 274, 277 or 278, relating to harboring, aiding or assisting aliens to enter the U.S.; or the importation of aliens for an ‘immoral purpose’;

• felony crimes of violence, as defined in section 16 of Title 18, which is punishable by a sentence of imprisonment of five years or more;

• crimes involving the obstruction of justice, tampering with or retaliating against a witness, victim, informant, or burglary; and

• any conduct punishable under numerous sections in Title 18 relating to fraud, peonage, slavery, trafficking, interstate travel relating to racketeering; laundering monetary instruments; monetary transactions in property from unlawful activity, and activities

relating to stolen motor vehicles or property. Conspiracy to commit these offenses is also included.

Inadmissible and Deportable: Aliens associated with criminal gangs are inadmissible and deportable if participated in a criminal gang, knowing or having reason to know such participation promoted, furthered, aided, or supported the illegal activity of the criminal gang

Aliens with TPS (temporary protected status) who participate in or at any time after admission participated in criminal gang activities knowing or having reason to know that such participation will promote, further, aid, or support the illegal activity of the criminal gang are not eligible for TPS. Secretary may detain such individual whenever appropriate.

Increased penalties related to removal: Amends Section 243 relating to penalties for failure to depart under either section 212(a) or 237(a). Increases the term of imprisonment to not more than five years. The term of imprisonment for willful failure to comply with the terms of release under supervision increases to a term of imprisonment of not more than five years (or 10 if member of some classes of aliens and fined under 18 USC.

• Amends the firearm ground at 18 USC § 924(c) to include an “alien smuggling crime” relating to the prohibition of carrying or using firearms during and in relation to an Alien Smuggling Crime.

Sec. 206. Illegal Entry. Amends Sec. 275. Knowingly entering or crossing the US border, eluding examination or inspection by an immigration officer, including refusing to stop when ordered, or knowingly entering by making a knowingly false or misleading statement or knowing concealment of a material fact is a criminal offense subject to the following penalties:

• Fine or imprisonment of not more than 6 months, or both.

• Fine, imprisonment for not more than 2 years or both for a second or subsequent violation or following an order of voluntary departure.

• *Penalty for alien convicted of 3 or more misdemeanors or felony: fined and imprisoned for not more than 10 years or both.

• *Penalty for alien convicted of a felony for which alien served a term of imprisonment of not less than 30 months: fined, imprisoned not more than 15 years or both.

• *Penalty for alien convicted of felony and alien served term of imprisonment: fined, imprisonment for not more than 20 years or both.

*Prior Convictions: The convictions in these cases must be alleged in the indictment/information and proven beyond a reasonable doubt.

Improper time and place penalties: Aliens apprehended while entering or attempting to, or knowingly crossing the border are subject to a civil penalty of not less than $50 nor more than $250 for each crossing and 2x the amount if previously fined, plus any other criminal penalties.

Sec. 207. Illegal Reentry. Adds an affirmative defense for aliens who are under the age of 18 and who were not convicted of a crime or adjudicated a delinquent minor by a court for conduct that would have been a felony if committed by an adult. Amends section 276.

Reentry after Removal: May be fined, imprisoned not more than two years or both.

• Penalty is a fine, imprisonment for up to 10 years, or both for alien, who reenters after removal and was convicted of 3 or more misdemeanors or a felony before removal.

• May be fined, imprisoned for not more than 15 years or both if alien who reenters was convicted of a felony before removal or departure for which alien was sentenced to a term of imprisonment of not less than 30 months.

• May be fined, imprisoned for not more than 20 years if convicted of felony before such removal for which alien was sentenced to term of imprisonment of not less than 60 months.

• May be fined, imprisoned for not more than 20 years or both if alien who reenters was convicted for 3 felonies before removal or departure.

• May be fined, imprisoned for not more than 20 years or both if alien who reenters was convicted before such removal, of murder, rape, kidnapping or felony offense described in 18 U.S.C. Chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism).

Reentry after Repeated Removal: If deported, denied admission, excluded or removed 3 or more times and try to reenter or are found in the US, may be fined, imprisoned not more than 10 years or both.

Prior Convictions: Must be elements of crimes and penalties only apply if crimes are alleged in indictment/information and proven beyond a reasonable doubt or admitted by the defendant.

Affirmative Defenses: 1) If application for Consent to Apply for Readmission before alleged violation was granted; 2) If alien previously denied admission and removed and the alien was not required to obtain advance consent and alien complied with all other laws and regulations; or 3) at the time of the prior exclusion, deportation, removal or denial of admission, the alien was under the age of 18 and had not been convicted of a crime or adjudicated a delinquent minor by a court of the U.S., state or territory for conduct that would constitute a felony if committed by an adult.

Limitation of Collateral Attack: Aliens cannot challenge the validity of any prior removal order concerning the alien in a criminal proceeding unless alien demonstrates by “clear and convincing evidence” that the alien exhausted all administrative remedies that may have been available to seek relief against the order; that the removal proceedings at which the order was issued improperly deprived alien of the opportunity for judicial review; and entry of the order was fundamentally unfair.

Reentry of Alien Removed Prior to Completion of Term of Imprisonment: If alien comes back or attempts to cross, alien has to finish incarceration for remainder of sentence which was pending at the time of deportation w/o any reduction for parole or supervised release unless alien affirmatively demonstrates that Secretary consented to reentry. Alien is subject to other penalties relating to reentry of removed alien.

Limitation: It is not “aiding and abetting” for someone to provide an alien with emergency humanitarian assistance, including emergency medical care and food, or to transport an alien to a location where such assistance can be rendered without compensation or the expectation of compensation.

Felony: Any criminal offense punishable by a term of imprisonment of more than one year under the laws of the U.S., any state or a foreign government.

Misdemeanor: Any criminal offense punishable by a term of imprisonment of not more than one year under applicable laws.

Removal: Denial of admission, exclusion, deportation, or removal or any agreement by which an alien stipulates or agrees to exclusion, deportation or removal.

State: State of the U.S., DC, and any commonwealth, territory or possession of the U.S.

Sec. 208. Reform of Passport, Visa and Immigration Fraud Offenses This section amends a number of sections under 18 USC, Chapter 75, sections 1541 through 1553. The definition of “Marriage Fraud” is detailed in Sec. 1547 along with the applicable penalties. Section 1547 imposes either a fine or imprisonment of not more than 10 years or both, for anyone who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws or knowingly misrepresents the existence or circumstances of a marriage in an application or document authorized by the immigration laws or during any immigration proceeding conducted by an administrative adjudicator, (examiner, officer, consular officer, immigration judge, or BIA panel member). There are additional penalties for multiple marriages.

Section 208 would amend 18 U.S.C., Chapter 75 to include a host of new passport, document-related, and marriage fraud offenses and, in some instances, would reduce the level of intent required (which, by extension, expands the number of people who can be prosecuted). Examples of the kinds of activities that would be made criminal under this section include an alien who:

• knowingly uses any passport to enter or to attempt to enter the United States;

• knowingly uses ANY immigration document issued or designed for the use of another;

• knowingly makes a false statement or representation in an application for a U.S. passport (including supporting documentation); and

• Knowingly furnishes a passport to a person for the use when such person is not the person for whom the passport was designed or issued.

Section 208 also would create a new chapter of definitions in 18 U.S.C. chapter 75. For example, “falsely make” would mean to prepare or complete an immigration document with “knowledge or in reckless disregard” of the fact that the document contains a statement that is false. “False statement or representation” would be defined to include “a personation or an omission.”

This section would punish people who commit offenses outside the U.S. covered in chapter 75 if it relates to an immigration document, commerce, etc.

The AG is authorized to develop binding prosecution guidelines for federal prosecutors to ensure that any prosecution of an alien’s entry into the U.S. by fraud is consistent with Article 31(1) of the 1951 Convention Relating to the Status of Refugees. There is no private right of action under the deadlines.

Sec. 209. Inadmissibility and Removal for Passport and Immigration Fraud Offenses. Section 209 would amend the INA inadmissibility and removal grounds to make violations and attempts and conspiracies to violate provisions under section 208 both removable and inadmissible grounds in proceedings pending on or after the date of enactment, with respect to conduct occurring on or after that date.

Sec. 210. Incarceration of Criminal Aliens. Section 210 would mandate the continuation of the Institutional Removal Program (IRP) or the development of another program to identify removable persons in federal and state correctional facilities; ensure that they are not released into the community; and to remove them when they complete their sentences. This program is to be expanded to all 50 states. Technology, such as videoconferencing to the maximum extent practicable to make IRP available in remote locations is required. A report to Congress is due not later than 6 months.

• Voluntary Departure instead of Removal, at the alien’s expense, rather than being placed in proceedings for a period not longer than 120 days. The alien may be required to post a voluntary departure bond.

• Before the Conclusion of Removal Proceedings: After proceedings begin, an alien can depart voluntarily at alien’s own expense, before the conclusion of proceedings before an immigration judge, for a period not to exceed 60 days but only if the alien can show that he/she has the means to depart and intends to do so. Aliens must post a voluntary departure bond in an amount sufficient to ensure their departure. An immigration judge may waive the requirement in individual cases if the judge finds that the alien has presented compelling evidence that posting the bond will cause serious financial hardship.

• Limits post-hearing voluntary departure to 45 days

• Conditions of Voluntary Departure: Only granted as part of an affirmative agreement. If alien agrees to depart, Secretary may agree to a reduction in period of inadmissibility under INA 212(a)(9)(A) or ((i). Agreement by alien during removal proceedings under Section 240 or at the conclusion of such proceedings must be presented on the record to the judge. The judge must advise the alien of the consequences of voluntary departure.

• Failure to comply with such Agreement: Alien is not eligible for benefits of agreement if alien does not leave within time frame or comply with terms and is subject to penalties and an alternate order of removal. Civil penalty of $3,000, which can be collected at any time and by whatever means. Alien is ineligible during time alien remains in the U.S. and for a period of 10 years thereafter, for adjustment, cancellation of removal, change in nonimmigrant classification, or registry for the time that s/he remains in the United States. Alien can file motions to reopen removal proceedings during time period. Alien can file motions based on an application for withholding of removal or torture relief if the motion presents material evidence of changed country conditions arising after the order granting voluntary departure and there is a sufficient showing of eligibility for such protection.

• Alien is not eligible to depart voluntarily if alien was previously given such a chance. The Secretary can promulgate regulations to limit eligibility or impose additional conditions for voluntary departure.

• No court has jurisdiction to affect, reinstate, enjoin, delay, stay or toll the period allowed for voluntary departure, notwithstanding sections of the Act, or habeas corpus provisions.

Section 212. Deterring Aliens Ordered Removed from Remaining in the United States Unlawfully. Certain aliens previously removed who seek admission not later than five years after the date of removal (or not later than 20 years after the alien’s second or subsequent removal) are inadmissible. Other aliens who were ordered removed under section 240 or left the U.S. when an order of removal was outstanding, and who seeks admission not later than 10 years of that date, are inadmissible.

Bar on discretionary Relief: Civil Penalties for Failure to Depart –Unless alien files a timely motion to reconsider under INA 240(c)(6), or file a timely motion to reopen under section 240(c)(7) which is granted, alien shall be ineligible for 10 years after departure. Alien is not precluded from filing motion to reopen to seek withholding of removal under INA 241(b)(3) or protection against torture but only if the non-citizen presents proof of changed country conditions arising after the date of the final removal order.

Sec. 213. Prohibition of the Sale of Firearms to, or the Possession of Firearms by Certain Aliens. Prohibits sale to or possession by alien not lawfully admitted for permanent residence or lawfully admitted but not as an alien lawfully admitted for permanent resident.

Sec. 214. Uniform Statute of Limitations for Certain Immigration, Passport and Naturalization Offenses. Section 214 would establish a statute of limitations for all immigration crimes, including willful failure to register or to provide a change of address, as well as crimes involving trafficking in persons, for a period not later than ten years. Section 214 also would extend the same statute of limitations to attempts at such crimes.

Sec. 215. Diplomatic Security Services Section 215 would expand the authority of special agents of the Department of State and the Foreign Service to investigate identity theft and document fraud relating to the programs of the Department of State, peonage and slavery and federal offenses committed in the special maritime and territorial jurisdiction of the United States.

Sec. 216. Streamlined Processing of Background Checks Conducted for Immigration Benefits. Secretary must establish a task force to resolve cases where an application or benefit conferred under the Act was delayed due to an outstanding background check for more than two years from date it was initially filed. Describes membership requirements, appropriations, and report requirements.

Sec. 217. State Criminal Alien Assistance Program (SCAAP). Section 217 addresses reimbursement costs to the states and units of local government for costs of processing undocumented criminal aliens for indigent defense, criminal prosecution, autopsies, translators, and court costs. Appropriations authorized of $400,000 for each FY 2008 – 2012 and other compensation upon request.

Sec. 218. Transportation and Processing of Illegal Aliens Apprehended by State and Local Law Enforcement Officers. Secretary may provide transportation when officers take illegal aliens apprehended by state and local law enforcement officers into custody for processing.

Sec. 219. Reducing Illegal Immigration and Alien Smuggling on Tribal Lands. Section 219 would authorize grants to Indian tribes with land adjacent to an international border that may have been adversely affected by illegal immigration. The grants may be used for law enforcement, health care, environmental restoration and preserving cultural resources. It would further provide that within 180 days of enactment, the Secretary of DHS shall submit a report, including information on the level of access of Border patrol agents on tribal lands, the extent to which enforcement could be improved through enhanced access, and a strategy for obtaining access and identifying grants provided to Indian tribes that relate to border security.

Sec. 220. Alternatives to Detention. Section 220 would require the Secretary to conduct a study of the effectiveness of alternatives to detention, including electronic monitoring devices and intensive supervision programs in ensuring alien appearance at court and in compliance with removal orders.

Sec. 221. State and Local Enforcement of Immigration Laws. INA § 287(g) requires the DHS to reimburse state and local governments for costs incurred for training and equipment related to enforcement of Federal immigration laws. Appropriations are authorized.

Sec. 222. Protecting Immigrants from Convicted Sex Offenders. Amends INA § 204(a)(1) to bar individuals convicted of the sex offenses in § 101(a)(43)(A), (I) and (K) from sponsoring family members unless the DHS determines that the convicted citizen or permanent resident poses no risk to the alien being sponsored.

Sec. 223. Law Enforcement Authority of States and Political subdivisions and transfer to Federal custody. Adds new Section 240D regarding the ability of law enforcement officers in a state or political subdivision who arrest or apprehend an alien, to request the Secretary to take the alien into Federal custody. Spells out the procedures the Secretary must follow. Reimbursement costs to the states are authorized and the cost computation formula to be followed. A distinction is made between incarceration in a federal facility, security, separating aliens with civil violations from criminal ones; the necessity of a schedule for the transportation of aliens; and it authorizes the Secretary to enter into contracts. One federal, state or local prison in each state (or detention facility) must be designated as the central facility for transfer to the Department of Homeland Security.

Requires that the federal facility have appropriate security and that “if practicable,” noncitizens detained solely for civil violations of Federal immigration law are separated from others.

Prior to entering into a contract or cooperative agreement, the Secretary of the Department of Homeland Security “shall determine whether the State … 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).” (relating to communication between government agencies and the Department of Homeland Security)

Sec. 224. Laundering of Monetary Instruments. Adds alien smuggling and trafficking to the list of crimes the financial proceeds from which are subject to the money laundering provisions of 18 USC.

Sec. 225. Cooperative Enforcement Programs. Within 2 years after enactment the Secretary of the Department of Homeland Security shall negotiate and execute, where practicable, a cooperative enforcement agreement described in INA § 287(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)

Sec. 226. Expansion of the Justice Prisoner and Alien Transfer System. Section 235 would require the Attorney General, not later than 60 days after the date of enactment, to issue a directive to expand the Justice Prisoner and Alien Transfer System (JPATS) so that the System provides additional services with respect to aliens who are unlawfully 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.

Sec. 228. Directive to the Sentencing Commission. Sentencing Commission must come up with guidelines and commentaries on sentencing for document and passport fraud.

Sec. 229. Cancellation of Visas. Allows cancellation of all non-immigrant visas based on the alien’s violation of the terms of the nonimmigrant classification. This gives DHS broader authority to cancel visas.

As in the current system, employers would be required to verify the identity and work authorization of employees by examining relevant documents, and attest to the employee’s work authorization under penalty of perjury. Employees may present either: a US passport or passport card, a permanent resident card (“green card”) or employment authorization card, or a temporary immigration benefits card under the Z-visa; or an identity document (in most cases, a REAL ID driver’s license or a non-REAL ID license plus birth certificate, naturalization certificate, or similar document) along with an employment authorization document (social security card). Non-REAL ID driver’s licenses may not be used after June 1, 2013. Employees must also attest to the veracity of these documents under penalty of perjury.

Employers are required to keep records of document verification for seven years after the date of hire or two years after an employee is terminated, whichever is earlier. Employers must also keep copies of employee documents as well as records related to Social Security no-match letters.

The government will establish an electronic verification system. The Secretary of DHS may require any employer to participate in the system immediately upon passage of the Act, and must require additional employers to participate within six months based upon risks to critical infrastructure, national security, immigration enforcement, or homeland security needs. All employers must run new hires through the EEVS within 18 months, and must re-verify all existing employees no later than three years after passage of the Act.

Employers must register with the EEVS and receive training prior to participating. Employers submit employees’ names, social security numbers, and alien numbers (non-citizens only) no earlier than the date of hire and no later than the first date of employment. Re-verification must occur on the date work authorization expires in the case of employees with limited work authorization, including Z-visas.

The System will return a confirmation, non-confirmation, or further action notice immediately in most cases, and always within three days. If the employee is confirmed, the employer records the confirmation and the process ends. If the employee receives a further action notice, the employer is required to communicate this information to the employee. The employee then has ten days to contact the appropriate agency to contest the further action notice or the System will issue a final non-confirmation. Employment must be terminated in the case of a final non-confirmation.

The System will provide a final confirmation or non-confirmation within 10 days of the employee’s contest. As long as the employee is taking steps required under the further action notice, the Secretary must extend the period of investigation until a final confirmation or non-confirmation is issued. An employer may not terminate an employee on the basis of work eligibility until a non-confirmation becomes final. An employer is not required to terminate a non-confirmed employee if the employee has filed an administrative or judicial appeal and the Secretary or Commissioner or a court of appeals has issued a stay of non-confirmation on the grounds that the appeal is frivolous, unlikely to succeed on the merits, or filed for purposes of delay

An employer may not use the EEVS to verify an employee prior to an offer of employment, may not require the individual to self-verify as a condition of an offer of employment, may not terminate an employee solely as the result of a further action notice, or require additional documents. The employer also may not take any of the following actions in response to a further action notice: reduce salary or other compensation, suspend the employee without pay, reduce hours (if the reduction is accompanied by a reduction in salary), deny necessary training. Employers must enforce document verification procedures in an even manner without regard to the employee’s national origin or citizenship status.

The Secretary of DHS will establish a system for oversight and enforcement of these requirements (bypassing the existing Office of Special Counsel for Unfair Immigration-Related Employment Practices) and shall work with the Secretary of Labor to establish and maintain an employee complaint procedure. Fines for violating these provisions are up to $10,000 for each violation. The Secretary of Homeland Security will disseminate information to employers and employees about these protections.

Employers may not require an employee to post a bond or security (indemnity bond) to provide a financial guarantee or indemnity against a potential liability arising from the hiring, recruiting, or referring for a fee of the individual.

Following a final non-confirmation, an employee has 15 days to file an administrative appeal of such notice with the Commissioner of Social Security (in the case of US citizens) or the Secretary of DHS (non-citizens) based upon information the individual has provided as well as any additional evidence not previously considered. The Secretary or Commissioner shall stay the final non-confirmation unless the Secretary or the Commissioner determines that the administrative appeal is frivolous, unlikely to succeed on the merits, or filed for purposes of delay. In this case, the employer cannot terminate the employee until the administrative appeal is concluded. Administrative relief is limited to an order upholding, reversing, modifying, amending, or setting aside the final non-confirmation; there is no compensation for lost wages or other money damages of any kind.

Within 30 days of an administrative review decision, an employee may file a petition for judicial review with the US Court of Appeals for the judicial circuit in which the employee resides. An employee must file a brief not later than 40 days after the date on which the administrative record is available. The court of appeals shall decide the petition only on the administrative record on which the final nonconfirmation is based. The burden is on the petitioner to show that the final nonconfirmation decision was arbitrary, capricious, not supported by substantial evidence, or otherwise not in accordance with law. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.

The System shall be designed to maximize reliability and ease of use, to respond accurately to queries, to protect private information, to allow for auditing and use of data mining to detect identity fraud, and to display a digital photograph of the employee based on records maintained by federal, state, and territorial agencies. DHS shall have access to data kept by these other agencies, including Social Security and IRS data. The Secretary and other federal and state agencies shall develop procedures to regulate this access and protect private data; no specific limitations are discussed in the title.

The use of the system shall be limited to enforcement of immigration laws, enforcement and administration of anti-terrorism laws, and enforcement of federal criminal law relating to functions of EEVS, including prohibitions on forgery, fraud, and identity theft.Any employee who knowingly uses or discloses EEVS data for unauthorized purposes is subject to a fine of $5,000 – $50,000 per violation

The secretary shall establish procedures for individuals to file complaints respecting potential violations of this title and to investigate those complaints. Immigration officers shall have reasonable access to examine employment records, and may compel witnesses by subpoena.

If the secretary believes there has been a civil violation of these requirements, the secretary shall issue a pre-penalty notice disclosing the material facts and alleged violations. Employers may file a petition for the remission or mitigation of fines or penalties within 15 days, including any relevant evidence of good faith compliance, etc. After considering an employer petition, if the secretary determines there was a violation the secretary issues a written penalty claim, which may include:

• Civil penalties for hiring or continuing to employ an unauthorized alien: $5,000 for each unauthorized alien; $10,000 for each alien if the employer has previously been fined; $25,000 for each unauthorized alien if the employer has been fined more than once before; $75,000 for each unauthorized alien if the employer has been fined more than twice before

• Record-keeping or verification practices violations: $1,000 per violation; $2,000 per violation if fined once before; $5,000 if fined more than once before; $15,000 if fined more than twice before.

• Criminal penalties: an employer who engages in a pattern or practice of knowing violations shall be fined not more than $75,000 for each unauthorized alien, imprisoned for not more than six months, or both

• Loss of government contracts. An employer who is a repeat violator of this section or is convicted of a crime under this section shall be subject to debarment from the receipt of federal contracts, grants, or cooperative agreements for a period of up to two years. The Secretary can waive or alter this debarment for an employer who already holds federal contracts, grants, or cooperative agreements after consultation with the relevant agencies.

The Secretary may also impose an order of internal review and certification of compliance, requiring the employer to certify that the employer is in compliance or has instituted a program to come into compliance. An employer is required to respond to the order within 60 days

If an employer fails to comply with a final penalty determination and the final determination is not subject to judicial review, the Attorney General may file suit to enforce compliance in district court. If an employer is liable for a fee or penalty that is not eligible for judicial review, the fee or penalty becomes a lien on the employer’s property.

Employer may file a petition for review of a penalty by posting a bond or other guarantee of payment and filing the petition within 30 days of a final penalty determination. The petition shall be filed in the judicial circuit court where the penalty claim was issued, and shall file a brief no later than 40 days after the date on which the administrative record is available. The court of appeals shall decide employer’s petition only on the administrative record on which the final determination is based.

The provisions of this section preempt any State or local law that requires the use of the EEVS in a fashion that conflicts with federal policies, procedures or timetables, or that imposes 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.

DHS and SSA are authorized to establish regulatory requirements for verifying the identity and work authorization of employees who are the subject of SSA no-match notices.

Challenges to validity of this section are limited to constitutional challenges and title 5, chapter 5 of the US Code. Any challenges must be brought within 90 days after the date the challenged section or regulation is first implemented. The court may not certify a class for purposes of a class action lawsuit, and may not award attorneys’ fees.

General: Creates a new Y visa category and folds the current H-2A and H-2B programs into it (Y-2A and Y-2B, respectively). The creation of the new Y-1 visa category and the new Y-2B visa category (formerly H-2 do not go into effect until the enforcement triggers are satisfied.

Terms of status: Establishes the following limitations on Y-1 visa holders.

o Maximum three 2-year periods of admission permitted if coming alone.

i. Must leave country for 1 year after each two-year period.

ii. 2 years here, 1 year home, 2 years here, 1 year home, 2 years

o If family members accompanying, additional limitations

i. Must show income at 150% of the poverty level and health insurance for the dependents.

o No extensions of admission period authorized.

o Y-1 visa holders who overstay are permanently barred from admission to U.S.

o Y-1 visa holder may change employers if the new position has been certified by DOL.

o $500 state impact fee ($250 for each dependent if applicable)

Section 403. General Y Nonimmigrant Employer Obligations.

Employer must petition for a Y nonimmigrant after obtaining certification of the position from the DOL. Certification involves demonstrating:

o Recruitment of U.S. workers¹

o Payment of greater of the prevailing or actual wage paid to U.S. workers²

o Same working conditions as U.S. workers³

o Compliance with other labor protections⁴

This section reforms the existing H-2A program for the temporary admission of alien agricultural workers. Employers desiring to employ H-2A aliens must first file an application with the Secretary of Labor and a job offered to domestic workers. If the job opportunities for which the application is filed are covered by a collective bargaining agreement, the applicant must assure that the collective bargaining representative has been notified of the application and that the job opportunities are not vacant because the occupant is on strike or locked out, are temporary or seasonal (maximum duration of 10 months), have been or will be offered to U.S. workers, and are covered by workers’ compensation insurance. If the job opportunities for which the application is filed are not covered by a collective bargaining agreement, the applicant must also assure the minimum wages, benefits and working conditions required in Section 218A, non-displacement of U.S. workers, and recruitment of U.S. workers.

Workers in H-2A approved occupations from outside normal commuting distance must be provided with housing, at no cost to the worker, or a monetary housing allowance if there is sufficient housing in the area of intended employment

Workers outside normal commuting distance must be reimbursed reasonable costs for inbound transportation and subsistence if they complete 50-percent of the period of employment, and return transportation and subsistence if they complete the period of employment.