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Pub. L. 104-208
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
104th Congress
Sept. 30, 1996
110 Stat. 3009
DIVISION C-ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
SECTION 1. SHORT TITLE OF DIVISION; AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT; APPLICATION OF DEFINITIONS OF SUCH ACT; TABLE OF CONTENTS OF DIVISION; SEVERABILITY.
(a) SHORT TITLE.-This division may be cited as the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996".
(b) AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT.-Except as otherwise specifically provided-
(1) whenever in this division an amendment or repeal is expressed as the amendment or repeal of a section or other provision, the reference shall be considered to be made to that section or provision in the Immigration and Nationality Act; and
(2) amendments to a section or other provision are to such section or other provision before any amendment made to such section or other provision elsewhere in this division.
(c) APPLICATION OF CERTAIN DEFINITIONS.-Except as otherwise specifically provided in this division, for purposes of titles I and VI of this division, the terms "alien", "Attorney General", "border crossing identification card", " entry", "immigrant", "immigrant visa", "lawfully admitted for permanent residence", "national", "naturalization", "refugee", "State", and "United States" shall have the meaning given such terms in section 101(a) of the Immigration and Nationality Act.
(d) TABLE OF CONTENTS OF DIVISION.-The table of contents of this division is as follows:
Sec. 1.
Short title of division; amendments to Immigration and Nationality Act; application of definitions of such Act; table of contents of division; severability.
TITLE I-IMPROVEMENTS TO BORDER CONTROL, FACILITATION
OF LEGAL ENTRY, AND INTERIOR ENFORCEMENT
Subtitle A-Improved Enforcement at the Border
Sec. 101.
Border patrol agents and support personnel.
Sec. 103.
Improved border equipment and technology.
Sec. 104.
Improvement in border crossing identification card.
Sec. 108.
Criminal penalties for high speed flights from immigration checkpoints.
Sec. 109.
Joint study of automated data collection.
Sec. 110.
Automated entry-exit control system.
Sec. 111.
Submission of final plan on realignment of border patrol positions from interior stations.
Sec. 112.
Nationwide fingerprinting of apprehended aliens.
Subtitle B-Facilitation of Legal Entry
Sec. 122.
Land border inspection and automated permit pilot projects.
Sec. 124.
Training of airline personnel in detection of fraudulent documents.
Subtitle C-Interior Enforcement
Sec. 131.
Authorization of appropriations for increase in number of certain investigators.
Sec. 132.
Authorization of appropriations for increase in number of investigators of visa overstayers.
Sec. 133.
Acceptance of State services to carry out immigration enforcement.
TITLE II-ENHANCED ENFORCEMENT AND PENALTIES AGAINST ALIEN SMUGGLING; DOCUMENT FRAUD
Subtitle A-Enhanced Enforcement and Penalties Against Alien Smuggling
Sec. 201.
Wiretap authority for investigations of alien smuggling or document fraud.
Sec. 202.
Racketeering offenses relating to alien smuggling.
Sec. 203.
Increased criminal penalties for alien smuggling.
Sec. 204.
Increased number of assistant United States Attorneys.
Sec. 205.
Undercover investigation authority.
Subtitle B-Deterrence of Document Fraud
Sec. 211.
Increased criminal penalties for fraudulent use of government-issued documents.
Sec. 212.
New document fraud offenses; new civil penalties for document fraud.
Sec. 213.
New criminal penalty for failure to disclose role as preparer of false application for immigration benefits.
Sec. 214.
Criminal penalty for knowingly presenting document which fails to contain reasonable basis in law or fact.
Sec. 215.
Criminal penalty for false claim to citizenship.
Sec. 216.
Criminal penalty for voting by aliens in Federal election.
Sec. 217.
Criminal forfeiture for passport and visa related offenses.
Sec. 218.
Penalties for involuntary servitude.
Sec. 219.
Admissibility of videotaped witness testimony.
Sec. 220.
Subpoena authority in document fraud enforcement.
TITLE III-INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
Subtitle A-Revision of Procedures for Removal of Aliens
Sec. 301.
Treating persons present in the United States without authorization as not admitted.
Sec. 302.
Inspection of aliens; expedited removal of inadmissible arriving aliens; referral for hearing (revised section 235).
Sec. 303.
Apprehension and detention of aliens not lawfully in the United States
revised section 236).
Sec. 304.
Removal proceedings; cancellation of removal and adjustment of status; voluntary departure (revised and new sections 239 to 240C).
Sec. 305.
Detention and removal of aliens ordered removed (new section241).
Sec. 306.
Appeals from orders of removal (new section 242).
Sec. 307.
Penalties relating to removal (revised section 243).
Sec. 308.
Redesignation and reorganization of other provisions; additional conforming amendments.
Subtitle B-Criminal Alien Provisions
Sec. 321.
Amended definition of aggravated felony.
Sec. 322.
Definition of conviction and term of imprisonment.
Sec. 323.
Authorizing registration of aliens on criminal probation or criminal parole.
Sec. 324.
Penalty for reentry of deported aliens.
Sec. 326.
Criminal alien identification system.
Sec. 327.
Appropriations for criminal alien tracking center.
Sec. 328.
Provisions relating to State criminal alien assistance program.
Sec. 329.
Demonstration project for identification of illegal aliens in incarceration facility of Anaheim, California.
Sec. 333.
Penalties for conspiring with or assisting an alien to commit an offense under the Controlled Substances Import and Export Act.
Sec. 334.
Enhanced penalties for failure to depart, illegal reentry, and passport and visa fraud.
Subtitle C-Revision of Grounds for Exclusion and Deportation
Sec. 341.
Proof of vaccination requirement for immigrants.
Sec. 342.
Incitement of terrorist activity and provision of false documentation to terrorists as a basis for exclusion from the United States.
Sec. 343.
Certification requirements for foreign health-care workers.
Sec. 344.
Removal of aliens falsely claiming United States citizenship.
Sec. 345.
Waiver of exclusion and deportation ground for certain section 274C violators.
Sec. 346.
Inadmissibility of certain student visa abusers.
Sec. 347.
Removal of aliens who have unlawfully voted.
Sec. 348.
Waivers for immigrants convicted of crimes.
Sec. 349.
Waiver of misrepresentation ground of inadmissibility for certain alien.
Sec. 350.
Offenses of domestic violence and stalking as ground for deportation.
Sec. 351.
Clarification of date as of which relationship required for waiver from exclusion or deportation for smuggling.
Sec. 352.
Exclusion of former citizens who renounced citizenship to avoid United States taxation.
Sec. 353.
References to changes elsewhere in division.
Subtitle D-Changes in Removal of Alien Terrorist Provisions
Sec. 354.
Treatment of classified information.
Sec. 355.
Exclusion of representatives of terrorist organizations.
Sec. 356.
Standard for judicial review of terrorist organization designations.
Sec. 357.
Removal of ancillary relief for voluntary departure.
Subtitle E-Transportation of Aliens
Subtitle F-Additional Provisions
Sec. 371.
Immigration judges and compensation.
Sec. 372.
Delegation of immigration enforcement authority.
Sec. 373.
Powers and duties of the Attorney General and the Commissioner.
Sec. 375.
Limitation on adjustment of status.
Sec. 377.
Limitation on legalization litigation.
Sec. 378.
Rescission of lawful permanent resident status.
Sec. 380.
Civil penalties for failure to depart.
Sec. 381.
Clarification of district court jurisdiction.
Sec. 382.
Application of additional civil penalties to enforcement.
Sec. 383.
Exclusion of certain aliens from family unity program.
Sec. 384.
Penalties for disclosure of information.
Sec. 385.
Authorization of additional funds for removal of aliens.
Sec. 386.
Increase in INS detention facilities; report on detention space.
Sec. 387.
Pilot program on use of closed military bases for the detention of inadmissible or deportable aliens.
Sec. 388.
Report on interior repatriation program.
TITLE IV-ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
Subtitle A-Pilot Programs for Employment Eligibility Confirmation
Sec. 402.
Voluntary election to participate in a pilot program.
Sec. 403.
Procedures for participants in pilot programs.
Sec. 404.
Employment eligibility confirmation system.
Subtitle B-Other Provisions Relating to Employer Sanctions
Sec. 411.
Limiting liability for certain technical violations of paperwork requirements.
Sec. 412.
Paperwork and other changes in the employer sanctions program.
Sec. 413.
Report on additional authority or resources needed for enforcement of employer sanctions provisions.
Sec. 414.
Reports on earnings of aliens not authorized to work.
Sec. 415.
Authorizing maintenance of certain information on aliens.
Subtitle C-Unfair Immigration-Related Employment Practices
Sec. 421.
Treatment of certain documentary practices as unfair immigration-related employment practices.
TITLE V-RESTRICTIONS ON BENEFITS FOR ALIENS
Subtitle A-Eligibility of Aliens for Public Assistance and Benefits
Sec. 501.
Exception to ineligibility for public benefits for certain battered aliens.
Sec. 502
.
Pilot programs on limiting issuance of driver's licenses to illegal aliens.
Sec. 503.
Ineligibility of aliens not lawfully present for Social Security benefits.
Sec. 504.
Procedures for requiring proof of citizenship for Federal public benefits.
Sec. 505.
Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits.
Sec. 506.
Study and report on alien student eligibility for postsecondary Federal student financial assistance.
Sec. 507.
Verification of immigration status for purposes of Social Security and higher educational assistance.
Sec. 508.
No verification requirement for nonprofit charitable organizations.
Sec. 509.
GAO study of provision of means-tested public benefits to aliens who are not qualified aliens on behalf of eligible individuals.
Sec. 510.
Transition for aliens currently receiving benefits under the Food Stamp program.
Subtitle B-Public Charge Exclusion
Subtitle C-Affidavits of Support
Sec. 551.
Requirements for sponsor's affidavit of support.
Sec. 552.
Indigence and battered spouse and child exceptions to Federal attribution of income rule.
Sec. 553.
Authority of States and political subdivisions of States to limit assistance to aliens and to distinguish among classes of aliens in providing general cash public assistance.
Subtitle D-Miscellaneous Provisions
Sec. 561
.
Increased maximum criminal penalties for forging or counterfeiting seal of a Federal department or agency to facilitate benefit fraud by an unlawful alien.
Sec. 562.
Treatment of expenses subject to emergency medical services exception.
Sec. 563.
Reimbursement of States and localities for emergency ambulance services.
Subtitle E-Housing Assistance
Sec. 573.
Actions in cases of termination of financial assistance.
Sec. 574.
Verification of immigration status and eligibility for financial assistance.
Sec. 575.
Prohibition of sanctions against entities making financial assistance eligibility determinations.
Sec. 576.
Eligibility for public and assisted housing.
Subtitle F-General Provisions
Sec. 592.
Not applicable to foreign assistance.
TITLE VI-MISCELLANEOUS PROVISIONS
Subtitle A-Refugees, Parole, and Asylum
Sec. 601.
Persecution for resistance to coercive population control methods.
Sec. 603.
reatment of long-term parolees in applying worldwide numerical limitations.
Sec. 606.
Conditional repeal of Cuban Adjustment Act.
Subtitle B-Miscellaneous Amendments to the Immigration and Nationality Act
Sec. 622.
Waiver of foreign country residence requirement with respect to international medical graduates.
Sec. 623.
Use of legalization and special agricultural worker information.
Sec. 624.
Continued validity of labor certifications and classification petitions for professional athletes.
Sec. 626.
Services to family members of certain officers and agents killed in the line of duty.
Subtitle C-Provisions Relating to Visa
Processing and Consular Efficiency
Sec. 632.
Elimination of consulate shopping for visa overstays.
Sec. 633.
Authority to determine visa processing procedures.
Sec. 634.
Changes regarding visa application process.
Sec. 636.
Fee for diversity immigrant lottery.
Sec. 637.
Eligibility for visas for certain Polish applicants for the 1995 diversity immigrant program.
Subtitle D-Other Provisions
Sec. 641.
Program to collect information relating to nonimmigrant foreign students.
Sec. 642.
Communication between government agencies and the Immigration and Naturalization Service.
Sec. 643.
Regulations regarding habitual residence.
Sec. 644.
Information regarding female genital mutilation.
Sec. 645.
Criminalization of female genital mutilation.
Sec. 646.
Adjustment of status for certain Polish and Hungarian parolees.
Sec. 648.
Sense of Congress regarding American-made products; requirements regarding notice.
Sec. 649.
Vessel movement controls during immigration emergency.
Sec. 650.
Review of practices of testing entities.
Sec. 651.
Designation of a United States customs administrative building.
Sec. 653.
Review and report on H-2A nonimmigrant workers program.
Sec. 654.
Report on allegations of harassment by Canadian customs agents.
Sec. 655.
Sense of Congress on discriminatory application of New Brunswick provincial sales tax.
Sec. 656.
Improvements in identification-related documents.
Sec. 657.
Development of prototype of counterfeit-resistant Social Security card.
Sec. 659.
Sense of the Congress regarding the mission of the Immigration and Naturalization Service.
Sec. 660.
Authority for National Guard to assist in transportation of certain aliens.
Subtitle E-Technical Corrections
Sec. 671.
Miscellaneous technical corrections.
(e) SEVERABILITY.-If any provision of this division or the application of such provision to any person or circumstances is held to be unconstitutional, the remainder of this division and the application of the provisions of this division to any person or circumstance shall not be affected thereby.
TITLE I-IMPROVEMENTS TO BORDER CONTROL, FACILITATION OF LEGAL ENTRY, AND INTERIOR ENFORCEMENT
SUBTITLE A-IMPROVED ENFORCEMENT AT THE BORDER
SEC. 101. BORDER PATROL AGENTS AND SUPPORT PERSONNEL.
(a) INCREASED NUMBER OF BORDER PATROL AGENTS.-The Attorney General in each of fiscal years 1997, 1998, 1999, 2000, and 2001 shall increase by not less than 1,000 the number of positions for full-time, active-duty border patrol agents within the Immigration and Naturalization Service above the number of such positions for which funds were allotted for the preceding fiscal year.
(b) INCREASE IN BORDER PATROL SUPPORT PERSONNEL.-The Attorney General, in each of fiscal years 1997, 1998, 1999, 2000, and 2001, may increase by 300 the number of positions for personnel in support of border patrol agents above the number of such positions for which funds were allotted for the preceding fiscal year.
(c) DEPLOYMENT OF BORDER PATROL AGENTS.-The Attorney General shall, to the maximum extent practicable, ensure that additional border patrol agents shall be deployed among Immigration and Naturalization Service sectors along the border in proportion to the level of illegal crossing of the borders of the United States measured in each sector during the preceding fiscal year and reasonably anticipated in the next fiscal year.
(d) FORWARD DEPLOYMENT.-
(1) IN GENERAL.-The Attorney General shall forward deploy existing border patrol agents in those areas of the border identified as areas of high illegal entry into the United States in order to provide a uniform and visible deterrent to illegal entry on a continuing basis. The previous sentence shall not apply to border patrol agents located at checkpoints.
(2) PRESERVATION OF LAW ENFORCEMENT FUNCTIONS AND CAPABILITIES IN INTERIOR STATES.-The Attorney General shall, when deploying border patrol personnel from interior stations to border stations, coordinate with, and act in conjunction with, State and local law enforcement agencies to ensure that such deployment does not degrade or compromise the law enforcement capabilities and functions currently performed at interior border patrol stations.
(3) REPORT.-Not later than 6 months after the date of the enactment of this Act, the Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate a report on-
(A) the progress and effectiveness of the forward deployment under paragraph (1); and
(B) the measures taken to comply with paragraph (2).
SEC. 102. IMPROVEMENT OF BARRIERS AT BORDER.
(a) IN GENERAL.-The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.
(b) CONSTRUCTION OF FENCING AND ROAD IMPROVEMENTS IN THE BORDER AREA NEAR SAN DIEGO, CALIFORNIA.-
(1) IN GENERAL.-In carrying out subsection (a), the Attorney General shall provide for the construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward, of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.
(2) PROMPT ACQUISITION OF NECESSARY EASEMENTS.-The Attorney General, acting under the authority conferred in section 103(b) of the Immigration and Nationality Act (as inserted by subsection (d)), shall promptly acquire such easements as may be necessary to carry out this subsection and shall commence construction of fences immediately following such acquisition (or conclusion of portions thereof).
(3) SAFETY FEATURES.-The Attorney General, while constructing the additional fencing under this subsection, shall incorporate such safety features into the design of the fence system as are necessary to ensure the well-being of border patrol agents deployed within or in near proximity to the system.
(4) AUTHORIZATION OF APPROPRIATIONS.-There are authorized to be appropriated to carry out this subsection not to exceed $12,000,000. Amounts appropriated under this paragraph are authorized to remain available until expended.
(c) WAIVER.-The provisions of the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969 are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section.
(d) LAND ACQUISITION AUTHORITY.-
(1) IN GENERAL.-Section 103 (8 U.S.C. 1103) is amended-
(A) by redesignating subsections (b), (c), and (d) as subsections (c), (d), and (e), respectively; and
(B) by inserting after subsection (a) the following:
"(b)(1) The Attorney General may contract for or buy any interest in land, including temporary use rights, adjacent to or in the vicinity of an international land border when the Attorney General deems the land essential to control and guard the boundaries and borders of the United States against any violation of this Act.
"(2) The Attorney General may contract for or buy any interest in land identified pursuant to paragraph (1) as soon as the lawful owner of that interest fixes a price for it and the Attorney General considers that price to be reasonable.
"(3) When the Attorney General and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price, the Attorney General may commence condemnation proceedings pursuant to the Act of August 1, 1888 (Chapter 728; 25 Stat. 357).
"(4) The Attorney General may accept for the United States a gift of any interest in land identified pursuant to paragraph (1).".
(2) CONFORMING AMENDMENT.-Section 103(e) (as so redesignated by paragraph (1)(A)) is amended by striking "subsection (c)" and inserting "subsection (d)".
SEC. 103. IMPROVED BORDER EQUIPMENT AND TECHNOLOGY.
The Attorney General is authorized to acquire and use, for the purpose of detection, interdiction, and reduction of illegal immigration into the United States, any Federal equipment (including fixed wing aircraft, helicopters, four-wheel drive vehicles, sedans, night vision goggles, night vision scopes, and sensor units) determined available for transfer by any other agency of the Federal Government upon request of the Attorney General.
SEC. 104. IMPROVEMENT IN BORDER CROSSING IDENTIFICATION
CARD.
(a) IN GENERAL.-Section 101(a)(6) (8 U.S.C. 1101(a)(6)) is amended by adding at the end the following: "Such regulations shall provide that (A) each such document include a biometric identifier (such as the fingerprint or handprint of the alien) that is machine readable and (B) an alien presenting a border crossing identification card is not permitted to cross over the border into the United States unless the biometric identifier contained on the card matches the appropriate biometric characteristic of the
alien.".
(b) EFFECTIVE DATES.-
(1) CLAUSE A.-Clause (A) of the sentence added by the amendment made by subsection (a) shall apply to documents issued on or after 18 months after the date of the enactment of this Act.
(2) CLAUSE B.-Clause (B) of such sentence shall apply to cards presented on or after 3 years after the date of the enactment of this Act.
SEC. 105. CIVIL PENALTIES FOR ILLEGAL ENTRY.
(a) IN GENERAL.-Section 275 (8 U.S.C. 1325) is amended-
(1) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and
(2) by inserting after subsection (a) the following:
"(b) Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of-
"(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
"(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.".
(b) EFFECTIVE DATE.-The amendments made by subsection (a) shall apply to illegal entries or attempts to enter occurring on or after the first day of the sixth month beginning after the date of the enactment of this Act.
SEC. 106. HIRING AND TRAINING STANDARDS.
(a) REVIEW OF HIRING STANDARDS.-Not later than 60 days after the date of the enactment of this Act, the Attorney General shall complete a review of all prescreening and hiring standards used by the Commissioner of Immigration and Naturalization, and, where necessary, revise such standards to ensure that they are consistent with relevant standards of professionalism.
(b) CERTIFICATION.-At the conclusion of each of fiscal years 1997, 1998, 1999, 2000, and 2001, the Attorney General shall certify in writing to the Committees on the Judiciary of the House of Representatives and of the Senate that all personnel hired by the Commissioner of Immigration and Naturalization for such fiscal year were hired pursuant to the appropriate standards, as revised under subsection (a).
(c) REVIEW OF TRAINING STANDARDS.-
(1) REVIEW.-Not later than 180 days after the date of the enactment of this Act, the Attorney General shall complete a review of the sufficiency of all training standards used by the Commissioner of Immigration and Naturalization.
(2) REPORT.-
(A) IN GENERAL.-Not later than 90 days after the completion of the review under paragraph (1), the Attorney General shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate on the results of the review, including-
(i) a description of the status of efforts to update and improve training throughout the Immigration and Naturalization Service; and
(ii) an estimate of when such efforts are expected to be completed.
(B) AREAS REQUIRING FUTURE REVIEW.-The report shall disclose those areas of training that the Attorney General determines require further review in the future.
SEC. 107. REPORT ON BORDER STRATEGY.
(a) EVALUATION OF STRATEGY.-The Comptroller General of the United States shall track, monitor, and evaluate the Attorney General's strategy to deter illegal entry in the United States to determine the efficacy of such strategy.
(b) COOPERATION.-The Attorney General, the Secretary of State, and the Secretary of Defense shall cooperate with the Comptroller General of the United States in carrying out subsection (a).
(c) REPORT.-Not later than one year after the date of the enactment of this Act, and every year thereafter for the succeeding 5 years, the Comptroller General of the United States shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate on the results of the activities undertaken under subsection (a) during the previous year. Each such report shall include an analysis of the degree to which the Attorney General's strategy has been effective in reducing illeg
al entry. Each such report shall include a collection and systematic analysis of data, including workload indicators, related to activities to deter illegal entry and recommendations to improve and increase border security at the border and ports of entry.
SEC. 108. CRIMINAL PENALTIES FOR HIGH SPEED FLIGHTS FROM IMMIGRATION CHECKPOINTS.
(a) FINDINGS.-The Congress finds as follows:
(1) Immigration checkpoints are an important component of the national strategy to prevent illegal immigration.
(2) Individuals fleeing immigration checkpoints and leading law enforcement officials on high speed vehicle chases endanger law enforcement officers, innocent bystanders, and the fleeing individuals themselves.
(3) The pursuit of suspects fleeing immigration checkpoints is complicated by overlapping jurisdiction among Federal, State, and local law enforcement officers.
(b) HIGH SPEED FLIGHT FROM IMMIGRATION CHECKPOINTS.-
(1) IN GENERAL.-Chapter 35 of title 18, United States Code, is amended by adding at the end the following:
" § 758. High speed flight from immigration checkpoint
"Whoever flees or evades a checkpoint operated by the Immigration and Naturalization Service, or any other Federal law enforcement agency, in a motor vehicle and flees Federal, State, or local law enforcement agents in excess of the legal speed limit shall be fined under this title, imprisoned not more than five years, or both.".
(2) CLERICAL AMENDMENT.-The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 757 the following:
"758. High speed flight from immigration checkpoint."
(c) GROUNDS FOR DEPORTATION.-Section 241(a)(2)(A) (8 U.S.C. 1251(a)(2)(A)) is amended-
(1) by redesignating clause (iv) as clause (v);
(2) by inserting after clause (iii) the following:
"(iv) HIGH SPEED FLIGHT.-Any alien who is convicted of a violation of section 758 of title 18, United States Code (relating to high speed flight from an immigration checkpoint), is deportable."; and
(3) in clause (v) (as so redesignated by paragraph (1)), by striking "and (iii)" and inserting "(iii), and (iv)".
SEC. 109. JOINT STUDY OF AUTOMATED DATA COLLECTION.
(a) STUDY.-The Attorney General, together with the Secretary of State, the Secretary of Agriculture, the Secretary of the Treasury, and appropriate representatives of the air transport industry, shall jointly undertake a study to develop a plan for making the transition to automated data collection at ports of entry.
(b) REPORT.-Nine months after the date of the enactment of this Act, the Attorney General shall submit a report to the Committees on the Judiciary of the Senate and the House of Representatives on the outcome of the joint initiative under subsection (a), noting specific areas of agreement and disagreement, and recommending further steps to be taken, including any suggestions for legislation.
SEC. 110. AUTOMATED ENTRY-EXIT CONTROL SYSTEM.
(a) SYSTEM.-Not later than 2 years after the date of the enactment of this Act, the Attorney General shall develop an automated entry and exit control system that will-
(1) collect a record of departure for every alien departing the United States and match the records of departure with the record of the alien's arrival in the United States; and
(2) enable the Attorney General to identify, through on-line searching procedures, lawfully admitted nonimmigrants who remain in the United States beyond the period authorized by the Attorney General.
(1) DEADLINE.-Not later than December 31 of each year following the development of the system under subsection (a), the Attorney General shall submit an annual report to the Committees on the Judiciary of the House of Representatives and of the Senate on such system.
(2) INFORMATION.-The report shall include the following information:
(A) The number of departure records collected, with an accounting by country of nationality of the departing alien.
(B) The number of departure records that were successfully matched to records of the alien's prior arrival in the United States, with an accounting by the alien's country of nationality and by the alien's classification as an immigrant or nonimmigrant.
(C) The number of aliens who arrived as nonimmigrants, or as a visitor under the visa waiver program under section 217 of the Immigration and Nationality Act, for whom no matching departure record has been obtained through the system or through other means as of the end of the alien's authorized period of stay, with an accounting by the alien's country of nationality and date of arrival in the United States.
(c) USE OF INFORMATION ON OVERSTAYS.-Information regarding aliens who have remained in the United States beyond their authorized period of stay identified through the system shall be integrated into appropriate data bases of the Immigration and Naturalization Service and the Department of State, including those used at ports of entry and at consular offices.
SEC. 111. SUBMISSION OF FINAL PLAN ON REALIGNMENT OF BORDER PATROL POSITIONS FROM INTERIOR STATIONS.
Not later than November 30, 1996, the Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate a final plan regarding the redeployment of border patrol personnel from interior locations to the front lines of the border. The final plan shall be consistent with the following:
(1) The preliminary plan regarding such redeployment submitted by the Attorney General on May 17, 1996, to the Committee on Appropriations of the House of Representatives and the Committee on Appropriations of the Senate.
(2) The direction regarding such redeployment provided in the joint explanatory statement of the committee of conference in the conference report to accompany the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Public Law 104-134).
SEC. 112. NATIONWIDE FINGERPRINTING OF APPREHENDED ALIENS.
There are authorized to be appropriated such additional sums as may be necessary to ensure that the "IDENT" program (operated by the Immigration and Naturalization Service) is expanded to apply to illegal or criminal aliens apprehended nationwide.
SUBTITLE B-FACILITATION OF LEGAL ENTRY
SEC. 121. LAND BORDER INSPECTORS.
In order to eliminate undue delay in the thorough inspection of persons and vehicles lawfully attempting to enter the United States, the Attorney General and the Secretary of the Treasury each shall increase, by approximately equal numbers in each of fiscal years 1997 and 1998, the number of full-time land border inspectors assigned to active duty by the Immigration and Naturalization Service and the United States Customs Service to a level adequate to assure full staffing during peak crossing hours of all
border crossing lanes currently in use, under construction, or whose construction has been authorized by the Congress, except such low-use lanes as the Attorney General may designate.
SEC. 122. LAND BORDER INSPECTION AND AUTOMATED PERMIT PILOT PROJECTS.
(a) EXTENSION OF LAND BORDER INSPECTION PROJECT AUTHORITY; ESTABLISHMENT OF AUTOMATED PERMIT PILOT PROJECTS.-Section 286(q) is amended-
(1) by striking the matter preceding paragraph (2) and inserting the following:
"(q) LAND BORDER INSPECTION FEE ACCOUNT.-(1)(A)(i) Notwithstanding any other provision of law, the Attorney General is authorized to establish, by regulation, not more than 6 projects under which a fee may be charged and collected for inspection services provided at one or more land border points of entry. Such projects may include the establishment of commuter lanes to be made available to qualified United States citizens and aliens, as determined by the Attorney General.
"(ii) The program authorized in this subparagraph shall terminate on September 30, 2000, unless further authorized by an Act of Congress.
"(iii) This subparagraph shall take effect, with respect to any project described in clause (1) that was not authorized to be commenced before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 30 days after submission of a written plan by the Attorney General detailing the proposed implementation of such project.
"(iv) The Attorney General shall prepare and submit on a quarterly basis, until September 30, 2000, a status report on each land border inspection project implemented under this subparagraph.
"(B) The Attorney General, in consultation with the Secretary of the Treasury, may conduct pilot projects to demonstrate the use of designated ports of entry after working hours through the use of card reading machines or other appropriate technology."; and(2) by striking paragraph (5).
(b) CONFORMING AMENDMENT.-The Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1994 (Public Law 103- 121, 107 Stat. 1161) is amended by striking the fourth proviso under the heading "Immigration and Naturalization Service, Salaries and Expenses".
SEC. 123. PREINSPECTION AT FOREIGN AIRPORTS.
(a) IN GENERAL.-The Immigration and Nationality Act is amended by inserting after section 235 the following:
"PREINSPECTION AT FOREIGN AIRPORTS
"SEC. 235A. (a) ESTABLISHMENT OF PREINSPECTION STATIONS.-
"(1) NEW STATIONS.-Subject to paragraph (5), not later than October 31, 1998, the Attorney General, in consultation with the Secretary of State, shall establish and maintain preinspection stations in at least 5 of the foreign airports that are among the 10 foreign airports which the Attorney General identifies as serving as last points of departure for the greatest numbers of inadmissible alien passengers who arrive from abroad by air at ports of entry within the United States. Such preinspection stations s
hall be in addition to any preinspection stations established prior to the date of the enactment of such Act.
"(2) REPORT.-Not later than October 31, 1998, the Attorney General shall report to the Committees on the Judiciary of the House of Representatives and of the Senate on the implementation of paragraph (1).
"(3) DATA COLLECTION.-Not later than November 1, 1997, and each subsequent November 1, the Attorney General shall compile data identifying-
"(A) the foreign airports which served as last points of departure for aliens who arrived by air at United States ports of entry without valid documentation during the preceding fiscal years;
(B) the number and nationality of such aliens arriving from each such foreign airport; and
"(C) the primary routes such aliens followed from their country of origin to the United States.
"(4) ADDITIONAL STATIONS.-Subject to paragraph (5), not later than October 31, 2000, the Attorney General, in consultation with the Secretary of State, shall establish preinspection stations in at least 5 additional foreign airports which the Attorney General, in consultation with the Secretary of State, determines, based on the data compiled under paragraph (3) and such other information as may be available, would most effectively reduce the number of aliens who arrive from abroad by air at points of entry
within the United States who are inadmissible to the United States. Such preinspection stations shall be in addition to those established prior to the date of the enactment of such Act or pursuant to paragraph (1).
"(5) CONDITIONS.-Prior to the establishment of a preinspection station, the Attorney General, in consultation with the Secretary of State, shall ensure that-
"(A) employees of the United States stationed at the preinspection station and their accompanying family members will receive appropriate protection;
"(B) such employees and their families will not be subject to unreasonable risks to their welfare and safety; and
"(C) the country in which the preinspection station is to be established maintains practices and procedures with respect to asylum seekers and refugees in accordance with the Convention Relating to the Status of Refugees (done at Geneva, July 28, 1951), or the Protocol Relating to the Status of Refugees (done at New York, January 31, 1967), or that an alien in the country otherwise has recourse to avenues of protection from return to persecution.
"(b) ESTABLISHMENT OF CARRIER CONSULTANT PROGRAM.-The Attorney General shall assign additional immigration officers to assist air carriers in the detection of fraudulent documents at foreign airports which, based on the records maintained pursuant to subsection (a)(3), served as a point of departure for a significant number of arrivals at United States ports of entry without valid documentation, but where no preinspection station exists.".
(b) CLERICAL AMENDMENT.-The table of contents is amended by inserting after the item relating to section 235 the following:
"Sec. 235A.Preinspection at foreign airports.".
SEC. 124. TRAINING OF AIRLINE PERSONNEL IN DETECTION OF FRAUDULENT DOCUMENTS.
(a) USE OF FUNDS.-
(1) IN GENERAL.-Section 286(h)(2)(A) (8 U.S.C. 1356(h)(2)(A)) is amended-
(A) in clause (iv), by inserting ", including training of, and technical assistance to, commercial airline personnel regarding such detection" after " United States"; and
(B) by adding at the end the following:
"The Attorney General shall provide for expenditures for training and assistance described in clause (iv) in an amount, for any fiscal year, not less than 5 percent of the total of the expenses incurred that are described in the previous sentence.".
(2) APPLICABILITY.-The amendments made by paragraph (1) shall apply to expenses incurred during or after fiscal year 1997.
(b) COMPLIANCE WITH DETECTION REGULATIONS.-
(1) IN GENERAL.-Section 212(f) (8 U.S.C. 1182(f)) is amended by adding at the end the following: "Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by suc
h airline.".
(2) DEADLINE.-The Attorney General shall first issue, in proposed form, regulations referred to in the second sentence of section 212(f) of the Immigration and Nationality Act, as added by the amendment made by paragraph (1), not later than 90 days after the date of the enactment of this Act.
SEC. 125. PRECLEARANCE AUTHORITY.
Section 103(a) of the Immigration and Nationality Act (8 U.S.C. 1103(a)) is amended by adding at the end the following:
"After consultation with the Secretary of State, the Attorney General may authorize officers of a foreign country to be stationed at preclearance facilities in the United States for the purpose of ensuring that persons traveling from or through the United States to that foreign country comply with that country's immigration and related laws. Those officers may exercise such authority and perform such duties as United States immigration officers are authorized to exercise and perform in that foreign country
under reciprocal agreement, and they shall enjoy such reasonable privileges and immunities necessary for the performance of their duties as the government of their country extends to United States immigration officers.".
SUBTITLE C-INTERIOR ENFORCEMENT
SEC. 131.
AUTHORIZATION OF APPROPRIATIONS FOR INCREASE
IN
NUMBEROF CERTAIN INVESTIGATORS.
(a) AUTHORIZATION.-There are authorized to be appropriated such funds as may be necessary to enable the Commissioner of Immigration and Naturalization to increase the number of investigators and support personnel to investigate potential violations of sections 274 and 274A of the Immigration and Nationality Act by a number equivalent to 300 full-time active-duty investigators in each of fiscal years 1997, 1998, and 1999.
(b) ALLOCATION OF INVESTIGATORS.-At least one-half of the investigators hired with funds made available under subsection (a) shall be assigned to investigate potential violations of section 274A of the Immigration and Nationality Act.
(c) LIMITATION ON OVERTIME.-None of the funds made available under subsection (a) shall be available for administrative expenses to pay any employee overtime pay in an amount in excess of $25,000 for any fiscal year.
SEC. 132.
AUTHORIZATION OF APPROPRIATIONS FOR INCREASE IN
NUMBER OF
INVESTIGATORS OF VISA OVERSTAYERS.
There are authorized to be appropriated such funds as may be necessary to enable the Commissioner of Immigration and Naturalization to increase the number of investigators and support personnel to investigate visa overstayers by a number equivalent to 300 full-time active-duty investigators in fiscal year 1997.
SEC. 133. ACCEPTANCE OF STATE SERVICES TO CARRY OUT IMMIGRATION ENFORCEMENT.
Section 287 (8 U.S.C. 1357) is amended by adding at the end the following:
(g)(1) Notwithstanding section 1342 of title 31, United States Code, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines
to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.
"(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.
"(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.
"(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision.
"(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political
subdivision.
"(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.
"(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of title 5, United States Code (relating to compensation for injury), and sections 2671 through 2680 of title 28, United States Code (relating to tort claims).
"(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.
"(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.
"(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State-
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or
"(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.".
SEC. 134. MINIMUM STATE INS PRESENCE.
(a) IN GENERAL.-Section 103 (8 U.S.C. 1103), as amended by section 102(e) of this division, is further amended by adding at the end the following:
"(f) The Attorney General shall allocate to each State not fewer than 10 full-time active duty agents of the Immigration and Naturalization Service to carry out the functions of the Service, in order to ensure the effective enforcement of this Act.".
(b) EFFECTIVE DATE.-The amendment made by subsection (a) shall take effect 90 days after the date of the enactment of this Act.
TITLE II-ENHANCED ENFORCEMENT AND PENALTIES AGAINST ALIEN SMUGGLING ; DOCUMENT FRAUD
SUBTITLE A-ENHANCED ENFORCEMENT AND PENALTIES AGAINST ALIEN SMUGGLING
SEC. 201. WIRETAP AUTHORITY FOR INVESTIGATIONS OF ALIEN SMUGGLING OR DOCUMENT FRAUD.
Section 2516(1) of title 18, United States Code, is amended-
(1) in paragraph (c), by striking "or section 1992 (relating to wrecking trains)" and inserting "section 1992 (relating to wrecking trains), a felony violation of section 1028 (relating to production of false identification documentation), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers), section 1541 (relatin
g to passport issuance without authority), section 1542 (relating to false statements in passport applications), section 1543 (relating to forgery or false use of passports), section 1544 (relating to misuse of passports), or section 1546 (relating to fraud and misuse of visas, permits, and other documents)";
(2) by striking "or" at the end of paragraph (l);
(3) by redesignating paragraphs (m), (n), and (o) as paragraphs (n), (o), and (p), respectively; and
(4) by inserting after paragraph (l) the following new paragraph:
"(m) a violation of section 274, 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1324, 1327, or 1328) (relating to the smuggling of aliens);".
SEC. 202. RACKETEERING OFFENSES RELATING TO ALIEN SMUGGLING.
Section 1961(1) of title 18, United States Code, as amended by section 433 of Public Law 104-132, is amended-
(1) by striking "if the act indictable under section 1028 was committed for the purpose of financial gain";
(2) by inserting "section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers)," after "section 1344 (relating to financial institution fraud),";
(3) by striking "if the act indictable under section 1542 was committed for the purpose of financial gain";
(4) by striking "if the act indictable under section 1543 was committed for the purpose of financial gain";
(5) by striking "if the act indictable under section 1544 was committed for the purpose of financial gain"; and
(6) by striking "if the act indictable under section 1546 was committed for the purpose of financial gain".
SEC. 203. INCREASED CRIMINAL PENALTIES FOR ALIEN SMUGGLING.
(a) COMMERCIAL ADVANTAGE.-Section 274(a)(1)(B)(i) (8 U.S.C. 1324(a)(1)(B)(i)) is amended by inserting "or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain" after "subparagraph (A)(i)".
(b) ADDITIONAL OFFENSES.-Section 274(a) (8 U.S.C. 1324(a)) is amended-
(1) in paragraph (1)(A)-
(A) by striking "or" at the end of clause (iii);
(B) by striking the comma at the end of clause (iv) and inserting "; or"; and
(C) by adding at the end the following new clause:
"(v)(I) engages in any conspiracy to commit any of the preceding acts, or
"(II) aids or abets the commission of any of the preceding acts,";
(A) in clause (i), by inserting "or (v)(I)" after "(A)(i)";
(B) in clause (ii), by striking "or (iv)" and inserting "(iv), or (v)(II)";
(C) in clause (iii), by striking "or (iv)" and inserting "(iv), or (v)"; and
(D) in clause (iv), by striking "or (iv)" and inserting "(iv), or (v)";
(3) in paragraph (2)(B), by striking "be fined" and all that follows and inserting the following: "be fined under title 18, United States Code, and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years."; and
(4) by adding at the end the following new paragraph:
"(3)(A) Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both.
"(B) An alien described in this subparagraph is an alien who-
"(i) is an unauthorized alien (as defined in section 274A(h)(3)), and
"(ii) has been brought into the United States in violation of this subsection.".
(c) SMUGGLING OF ALIENS WHO WILL COMMIT CRIMES.-Clause
"(i) of section 274(a)(2)(B) (8 U.S.C. 1324(a)(2)(B)) is amended to read as follows:
"(i) an offense committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by imprisonment for more than 1 year,".
(d) APPLYING CERTAIN PENALTIES ON A PER ALIEN BASIS.-Section 274(a)(2) (8 U.S.C. 1324(a)(2)) is amended by striking "for each transaction constituting a violation of this paragraph, regardless of the number of aliens involved" and inserting "for each alien in respect to whom a violation of this paragraph occurs".
(e) SENTENCING GUIDELINES.-
(1) IN GENERAL.-Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall promulgate sentencing guidelines or amend existing sentencing guidelines for offenders convicted of offenses related to smuggling, transporting, harboring, or inducing aliens in violation of section 274(a) (1)(A) or (2) of the Immigration and Nationality Act (8 U.S.C. 1324(a)(1)(A), (2)(B)) in accordance with this subsection.
(2) REQUIREMENTS.-In carrying out this subsection, the Commission shall, with respect to the offenses described in paragraph (1)-
(A) increase the base offense level for such offenses at least 3 offense levels above the applicable level in effect on the date of the enactment of this Act;
(B) review the sentencing enhancement for the number of aliens involved (U.S.S.G. 2L1.1(b)(2)), and increase the sentencing enhancement by at least 50 percent above the applicable enhancement in effect on the date of the enactment of this Act;
(C) impose an appropriate sentencing enhancement upon an offender with 1 prior felony conviction arising out of a separate and prior prosecution for an offense that involved the same or similar underlying conduct as the current offense, to be applied in addition to any sentencing enhancement that would otherwise apply pursuant to the calculation of the defendant's criminal history category;
(D) impose an additional appropriate sentencing enhancement upon an offender with 2 or more prior felony convictions arising out of separate and prior prosecutions for offenses that involved the same or similar underling conduct as the current offense, to be applied in addition to any sentencing enhancement that would otherwise apply pursuant to the calculation of the defendant's criminal history category;
(E) impose an appropriate sentencing enhancement on a defendant who, in the course of committing an offense described in this subsection-
(i) murders or otherwise causes death, bodily injury, or serious bodily injury to an individual;
(ii) uses or brandishes a firearm or other dangerous weapon; or
(iii) engages in conduct that consciously or recklessly places another in serious danger of death or serious bodily injury;
(F) consider whether a downward adjustment is appropriate if the offense is a first offense and involves the smuggling only of the alien's spouse or child; and
(G) consider whether any other aggravating or mitigating circumstances warrant upward or downward sentencing adjustments.
(3) EMERGENCY AUTHORITY TO SENTENCING COMMISSION.-The Commission shall promulgate the guidelines or amendments provided for under this subsection as soon as practicable in accordance with the procedure set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that Act had not expired.
(f) EFFECTIVE DATE.-This section and the amendments made by this section shall apply with respect to offenses occurring on or after the date of the enactment of this Act.
SEC. 204. INCREASED NUMBER OF ASSISTANT UNITED STATES ATTORNEYS.
(a) IN GENERAL.-The number of Assistant United States Attorneys employed by the Department of Justice for the fiscal year 1997 shall be increased by at least 25 above the number of Assistant United States Attorneys that were authorized to be employed as of September 30, 1996.
(b) ASSIGNMENT.-Individuals employed to fill the additional positions described in subsection (a) shall prosecute persons who bring into the United States or harbor illegal aliens or violate other criminal statutes involving illegal aliens.
SEC. 205. UNDERCOVER INVESTIGATION AUTHORITY.
(a) IN GENERAL.-Title II is amended by adding at the end the following new section:
"UNDERCOVER INVESTIGATION AUTHORITY
"SEC. 294. (a) IN GENERAL.-With respect to any undercover investigative operation of the Service which is necessary for the detection and prosecution of crimes against the United States-
"(1) sums appropriated for the Service may be used for leasing space within the United States and the territories and possessions of the United States without regard to the following provisions of law:
"(A) section 3679(a) of the Revised Statutes (31 U.S.C. 1341),
"(B) section 3732(a) of the Revised Statutes (41 U.S.C. 11(a)),
"(C) section 305 of the Act of June 30, 1949 (63 Stat. 396; 41 U.S.C. 255),
"(D) the third undesignated paragraph under the heading 'Miscellaneous' of the Act of March 3, 1877 (19 Stat. 370; 40 U.S.C. 34),
"(E) section 3648 of the Revised Statutes (31 U.S.C. 3324),
"(F) section 3741 of the Revised Statutes (41 U.S.C. 22), and
"(G) subsections (a) and (c) of section 304 of the Federal Property and Administrative Services Act of 1949 (63 Stat. 395; 41 U.S.C. 254 (a) and (c));
"(2) sums appropriated for the Service may be used to establish or to acquire proprietary corporations or business entities as part of an undercover operation, and to operate such corporations or business entities on a commercial basis, without regard to the provisions of section 304 of the Government Corporation Control Act (31 U.S.C. 9102);
"(3) sums appropriated for the Service, and the proceeds from the undercover operation, may be deposited in banks or other financial institutions without regard to the provisions of section 648 of title 18, United States Code, and of section 3639 of the Revised Statutes (31 U.S.C. 3302); and
"(4) the proceeds from the undercover operation may be used to offset necessary and reasonable expenses incurred in such operation without regard to the provisions of section 3617 of the Revised Statutes (31 U.S.C. 3302).
The authority set forth in this subsection may be exercised only upon written certification of the Commissioner, in consultation with the Deputy Attorney General, that any action authorized by paragraph (1), (2), (3), or (4) is necessary for the conduct of the undercover operation.
"(b) DISPOSITION OF PROCEEDS NO LONGER REQUIRED.-As soon as practicable after the proceeds from an undercover investigative operation, carried out under paragraphs (3) and (4) of subsection (a), are no longer necessary for the conduct of the operation, the proceeds or the balance of the proceeds remaining at the time shall be deposited into the Treasury of the United States as miscellaneous receipts.
"(c) DISPOSITION OF CERTAIN CORPORATIONS AND BUSINESS ENTITIES.-If a corporation or business entity established or acquired as part of an undercover operation under paragraph (2) of subsection (a) with a net value of over $50,000 is to be liquidated, sold, or otherwise disposed of, the Service, as much in advance as the Commissioner or Commissioner's designee determines practicable, shall report the circumstances to the Attorney General, the Director of the Office of Management and Budget, and the Comptroll
er General. The proceeds of the liquidation, sale, or other disposition, after obligations are met, shall be deposited in the Treasury of the United States as miscellaneous receipts.
"(d) FINANCIAL AUDITS.-The Service shall conduct detailed financial audits of closed undercover operations on a quarterly basis and shall report the results of the audits in writing to the Deputy Attorney General.".
(b) CLERICAL AMENDMENT.-The table of contents is amended by inserting after the item relating to section 293 the following:
"Sec. 294. Undercover investigation authority.".
SUBTITLE B-DETERRENCE OF DOCUMENT FRAUD
SEC. 211. INCREASED CRIMINAL PENALTIES FOR FRAUDULENT USE OF GOVERNMENT-ISSUED DOCUMENTS.
(a) FRAUD AND MISUSE OF GOVERNMENT-ISSUED IDENTIFICATION DOCUMENTS.-(1) Section 1028(b) of title 18, United States Code, is amended-
(A) in paragraph (1), by inserting "except as provided in paragraphs (3) and (4)," after "(1)" and by striking "five years" and inserting "15 years";
(B) in paragraph (2), by inserting "except as provided in paragraphs (3) and (4)," after "(2)" and by striking "and" at the end;
(C) by redesignating paragraph (3) as paragraph (5); and
(D) by inserting after paragraph (2) the following new paragraphs:
"(3) a fine under this title or imprisonment for not more than 20 years, or both, if the offense is committed to facilitate a drug trafficking crime (as defined in section 929(a)(2) of this title);
"(4) a fine under this title or imprisonment for not more than 25 years, or both, if the offense is committed to facilitate an act of international terrorism (as defined in section 2331(1) of this title); and".
(2) Sections 1425 through 1427, sections 1541 through 1544, and section 1546(a) of title 18, United States Code, are each amended by striking " imprisoned not more" and all that follows through "years" each place it appears and inserting the following: "imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section
929(a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facility such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense)".
(b) CHANGES TO THE SENTENCING LEVELS.-
(1) IN GENERAL.-Pursuant to the Commission's authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall promulgate sentencing guidelines or amend existing sentencing guidelines for offenders convicted of violating, or conspiring to violate, sections 1028(b)(1), 1425 through 1427, 1541 through 1544, and 1546(a) of title 18, United States Code, in accordance with this subsection.
(2) REQUIREMENTS.-In carrying out this subsection, the Commission shall, with respect to the offenses referred to in paragraph (1)-
(A) increase the base offense level for such offenses at least 2 offense levels above the level in effect on the date of the enactment of this Act;
(B) review the sentencing enhancement for number of documents or passports involved (U.S.S.G. 2L2.1(b)(2)), and increase the upward adjustment by at least 50 percent above the applicable enhancement in effect on the date of the enactment of this Act;
(C) impose an appropriate sentencing enhancement upon an offender with 1 prior felony conviction arising out of a separate and prior prosecution for an offense that involved the same or similar underlying conduct as the current offense, to be applied in addition to any sentencing enhancement that would otherwise apply pursuant to the calculation of the defendant's criminal history category;
(D) impose an additional appropriate sentencing enhancement upon an offender with 2 or more prior felony convictions arising out of separate and prior prosecutions for offenses that involved the same or similar underlying conduct as the current offense, to be applied in addition to any sentencing enhancement that would otherwise apply pursuant to the calculation of the defendant's criminal history category; and
(E) consider whether any other aggravating or mitigating circumstances warrant upward or downward sentencing adjustments.
(3) EMERGENCY AUTHORITY TO SENTENCING COMMISSION.-The Commission shall promulgate the guidelines or amendments provided for under this subsection as soon as practicable in accordance with the procedure set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that Act had not expired.
(c) EFFECTIVE DATE.-This section and the amendments made by this section shall apply with respect to offenses occurring on or after the date of the enactment of this Act.
SEC. 212. NEW DOCUMENT FRAUD OFFENSES; NEW CIVIL PENALTIES FOR DOCUMENT FRAUD.
(a) ACTIVITIES PROHIBITED.-Section 274C(a) (8 U.S.C. 1324c(a)) is amended-
(1) in paragraph (1), by inserting before the comma at the end the following: "or to obtain a benefit under this Act";
(2) in paragraph (2), by inserting before the comma at the end the following: "or to obtain a benefit under this Act";
(3) in paragraph (3)-
(A) by inserting "or with respect to" after "issued to";
(B) by adding before the comma at the end the following: "or obtaining a benefit under this Act"; and
(C) by striking "or" at the end;
(4) in paragraph (4)-
(A) by inserting "or with respect to" after "issued to";
(B) by adding before the period at the end the following: "or obtaining a benefit under this Act"; and
(C) by striking the period at the end and inserting ", or"; and
(5) by adding at the end the following new paragraphs:
"(5) to prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted, or
"(6)(A) to present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien's eligibility to enter the United States, and (B) to fail to present such document to an immigration officer upon arrival at a United States port of entry.".
(b) DEFINITION OF FALSELY MAKE.-Section 274C (8 U.S.C. 1324c), as amended by section 213 of this division, is further amended by adding at the end the following new subsection:
"(f) FALSELY MAKE.-For purposes of this section, the term 'falsely make' means to prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted.".
(c) CONFORMING AMENDMENT.-Section 274C(d)(3) (8 U.S.C. 1324c(d)(3)) is amended by striking "each document used, accepted, or created and each instance of use, acceptance, or creation" each place it appears and inserting "each document that is the subject of a violation under subsection (a)".
(d) WAIVER BY ATTORNEY GENERAL.-Section 274C(d) (8 U.S.C. 1324c(d)) is amended by adding at the end the following new paragraph:
"(7) WAIVER BY ATTORNEY GENERAL.-The Attorney General may waive the penalties imposed by this section with respect to an alien who knowingly violates subsection (a)(6) if the alien is granted asylum under section 208 or withholding of deportation under section 243(h).".
(e) EFFECTIVE DATE.-Section 274C(f) of the Immigration and Nationality Act, as added by subsection (b), applies to the preparation of applications before, on, or after the date of the enactment of this Act.
SEC. 213. NEW CRIMINAL PENALTIES FOR FAILURE TO DISCLOSE ROLE AS PREPARER OF FALSE APPLICATION FOR IMMIGRATION BENEFITS.
Section 274C (8 U.S.C. 1324c) is amended by adding at the end the following new subsection:
"(e) CRIMINAL PENALTIES FOR FAILURE TO DISCLOSE ROLE AS DOCUMENT PREPARER.- (1) Whoever, in any matter within the jurisdiction of the Service, knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was falsely made (as defined in subsection (f)) for immigration benefits, shall be fined in accordance with title 18, United States Code, imprisoned for not more
than 5 years, or both, and prohibited from preparing or assisting in preparing, whether or not for a fee or other remuneration, any other such application.
"(2) Whoever, having been convicted of a violation of paragraph (1), knowingly and willfully prepares or assists in preparing an application for immigration benefits pursuant to this Act, or the regulations promulgated thereunder, whether or not for a fee or other remuneration and regardless of whether in any matter within the jurisdiction of the Service, shall be fined in accordance with title 18, United States Code, imprisoned for not more than 15 years, or both, and prohibited from preparing or assisting
in preparing any other such application.".
SEC. 214. CRIMINAL PENALTY FOR KNOWINGLY PRESENTING DOCUMENT WHICH FAILS TO CONTAIN REASONABLE BASIS IN LAW OR FACT.
The fourth paragraph of section 1546(a) of title 18, United States Code, is amended by striking "containing any such false statement" and inserting "which contains any such false statement or which fails to contain any reasonable basis in law or fact".
SEC. 215. CRIMINAL PENALTY FOR FALSE CLAIM TO CITIZENSHIP.
Section 1015 of title 18, United States Code, is amended-
(1) by striking the dash at the end of paragraph (d) and inserting "; or", and
(2) by inserting after paragraph (d) the following:
"(e) Whoever knowingly makes any false statement or claim that he is, or at any time has been, a citizen or national of the United States, with the intent to obtain on behalf of himself, or any other person, any Federal or State benefit or service, or to engage unlawfully in employment in the United States; or
"(f) Whoever knowingly makes any false statement or claim that he is a citizen of the United States in order to register to vote or to vote in any Federal, State, or local election (including an initiative, recall, or referendum)-".
SEC. 216. CRIMINAL PENALTY FOR VOTING BY ALIENS IN FEDERAL ELECTION.
(a) IN GENERAL.-Title 18, United States Code, is amended by inserting after section 610 the following:
"s611. Voting by aliens
"(a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless-
"(1) the election is held partly for some other purpose;
"(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and
"(3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.
"(b) Any person who violates this section shall be fined under this title, imprisoned not more than one year, or both.".
(b) CLERICAL AMENDMENT.-The table of sections at the beginning of chapter 29 of title 18, United States Code, is amended by inserting after the item relating to section 610 the following new item:
"611. Voting by aliens.".
SEC. 217. CRIMINAL FORFEITURE FOR PASSPORT AND VISA RELATED OFFENSES.
Section 982(a) of title 18, United States Code, is amended by inserting after paragraph (5) the following new paragraph:
"(6)(A) The court, in imposing sentence on a person convicted of a violation of, or conspiracy to violate, section 1425, 1426, 1427, 1541, 1542, 1543, 1544, or 1546 of this title, or a violation of, or conspiracy to violate, section 1028 of this title if committed in connection with passport or visa issuance or use, shall order that the person forfeit to the United States, regardless of any provision of State law-
"(i) any conveyance, including any vessel, vehicle, or aircraft used in the commission of a violation of, or a conspiracy to violate, subsection (a); and
"(ii) any property real or personal-
"(I) that constitutes, or is derived from or is traceable to the proceeds obtained directly or indirectly from the commission of a violation of, or a conspiracy to violate, subsection (a), section 274A(a)(1) or 274A(a)(2) of the Immigration and Nationality Act, or section 1028, 1425, 1426, 1427, 1541, 1542, 1543, 1544, or 1546 of this title; or
"(II) that is used to facilitate, or is intended to be used to facilitate, the commission of a violation of, or a conspiracy to violate, subsection (a), section 274A(a)(1) or 274A(a)(2) of the Immigration and Nationality Act, or section 1028, 1425, 1426, 1427, 1541, 1542, 1543, 1544, or 1546 of this title.
The court, in imposing sentence on such person, shall order that the person forfeit to the United States all property described in this subparagraph.
"(B) The criminal forfeiture of property under subparagraph (A), including any seizure and disposition of the property and any related administrative or judicial proceeding, shall be governed by the provisions of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsections (a) and (d) of such section 413.".
SEC. 218. CRIMINAL PENALTIES FOR INVOLUNTARY SERVITUDE.
(a) AMENDMENTS TO TITLE 18.-Sections 1581, 1583, 1584, and 1588 of title 18, United States Code, are amended by striking "five" each place it appears and inserting "10".
(b) REVIEW OF SENTENCING GUIDELINES.-The United States Sentencing Commission shall ascertain whether there exists an unwarranted disparity-
(1) between the sentences for peonage, involuntary servitude, and slave trade offenses, and the sentences for kidnapping offenses in effect on the date of the enactment of this Act; and
(2) between the sentences for peonage, involuntary servitude, and slave trade offenses, and the sentences for alien smuggling offenses in effect on the date of the enactment of this Act and after the amendment made by subsection (a).
(c) AMENDMENT OF SENTENCING GUIDELINES.-
(1) IN GENERAL.-Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall review its guidelines on sentencing for peonage, involuntary servitude, and slave trade offenses under sections 1581 through 1588 of title 18, United States Code, and shall amend such guidelines as necessary to-
(A) reduce or eliminate any unwarranted disparity found under subsection (b) that exists between the sentences for peonage, involuntary servitude, and slave trade offenses, and the sentences for kidnapping offenses and alien smuggling offenses;
(B) ensure that the applicable guidelines for defendants convicted of peonage, involuntary servitude, and slave trade offenses are sufficiently stringent to deter such offenses and adequately reflect the heinous nature of such offenses; and
(C) ensure that the guidelines reflect the general appropriateness of enhanced sentences for defendants whose peonage, involuntary servitude, or slave trade offenses involve-
(i) a large number of victims;
(ii) the use or threatened use of a dangerous weapon; or
(iii) a prolonged period of peonage or involuntary servitude.
(2) EMERGENCY AUTHORITY TO SENTENCING COMMISSION.-The Commission shall promulgate the guidelines or amendments provided for under this subsection as soon as practicable in accordance with the procedure set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that Act had not expired.
(d) EFFECTIVE DATE.-This section and the amendments made by this section shall apply with respect to offenses occurring on or after the date of the enactment of this Act.
SEC. 219. ADMISSIBILITY OF VIDEOTAPED WITNESS TESTIMONY.
Section 274 (8 U.S.C. 1324) is amended by adding at the end thereof the following new subsection:
"(d) Notwithstanding any provision of the Federal Rules of Evidence, the videotaped (or otherwise audiovisually preserved) deposition of a witness to a violation of subsection (a) who has been deported or otherwise expelled from the United States, or is otherwise unable to testify, may be admitted into evidence in an action brought for that violation if the witness was available for cross examination and the deposition otherwise complies with the Federal Rules of Evidence.".
SEC. 220. SUBPOENA AUTHORITY IN DOCUMENT FRAUD ENFORCEMENT.
Section 274C(d)(1) (8 U.S.C. 1324c(d)(1)) is amended-
(1) by striking "and" at the end of subparagraph (A);
(2) by striking the period at the end of subparagraph (B) and inserting ", and"; and
(3) by inserting after subparagraph (B) the following:
"(C) immigration officers designated by the Commissioner may compel by subpoena the attendance of witnesses and the production of evidence at any designated place prior to the filing of a complaint in a case under paragraph (2).".
TITLE III-INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
SUBTITLE A-REVISION OF PROCEDURES FOR REMOVAL OF ALIENS
SEC. 301. TREATING PERSONS PRESENT IN THE UNITED STATES WITHOUT AUTHORIZATION AS NOT ADMITTED.
(a) "ADMISSION" DEFINED.-Paragraph (13) of section 101(a) (8 U.S.C. 1101(a)) is amended to read as follows:
"(13)(A) The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
"(B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.
"(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-
"(i) has abandoned or relinquished that status,
"(ii) has been absent from the United States for a continuous period in excess of 180 days,
"(iii) has engaged in illegal activity after having departed the United States,
"(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
"(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
"(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.".
(b) INADMISSIBILITY OF ALIENS PREVIOUSLY REMOVED AND UNLAWFULLY PRESENT.-
(1) IN GENERAL.-Section 212(a) (8 U.S.C. 1182(a)) is amended by redesignating paragraph (9) as paragraph (10) and by inserting after paragraph (8) the following new paragraph:
"(9) ALIENS PREVIOUSLY REMOVED.-
"(A) CERTAIN ALIENS PREVIOUSLY REMOVED.-
"(i) ARRIVING ALIENS.-Any alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.
"(ii) OTHER ALIENS.-Any alien not described in clause (i) who-
"(I) has been ordered removed under section 240 or any other provision of law, or
"(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.
"(iii) EXCEPTION.-Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.
"(B) ALIENS UNLAWFULLY PRESENT.-
"(i) IN GENERAL.-Any alien (other than an alien lawfully admitted for permanent residence) who-
"(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or
"(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.
"(ii) CONSTRUCTION OF UNLAWFUL PRESENCE.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.
"(iii) EXCEPTIONS.-
"(I) MINORS.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
"(II) ASYLEES.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.
"(III) FAMILY UNITY.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
"(IV) BATTERED WOMEN AND CHILDREN.-Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if 'violation of the terms of the alien's nonimmigrant visa' were substituted for 'unlawful entry into the United States' in subclause (III) of that paragraph.
"(iv) TOLLING FOR GOOD CAUSE.-In the case of an alien who-
"(I) has been lawfully admitted or paroled into the United States,
"(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and
"(III) has not been employed without authorization in the United States before or during the pendency of such application,the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.
"(v) WAIVER.-The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by t
he Attorney General regarding a waiver under this clause.
"(C) ALIENS UNLAWFULLY PRESENT AFTER PREVIOUS IMMIGRATION VIOLATIONS.-
"(i) IN GENERAL.-Any alien who-
"(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
"(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law,and who enters or attempts to reenter the United States without being admitted is inadmissible.
"(ii) EXCEPTION.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.".
(2) LIMITATION ON CHANGE OF STATUS.-Section 248 (8 U.S.C. 1258) is amended by inserting "and who is not inadmissible under section 212(a)(9)(B)(i) (or whose inadmissibility under such section is waived under section 212(a)(9)(B)(v))" after "maintain that status".
(3) TREATMENT OF UNLAWFUL PRESENCE BEFORE EFFECTIVE DATE.-In applying section 212(a)(9)(B) of the Immigration and Nationality Act, as inserted by paragraph (1), no period before the title III-A effective date shall be included in a period of unlawful presence in the United States.
(c) REVISION TO GROUND OF INADMISSIBILITY FOR ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS.-
(1) IN GENERAL.-Subparagraphs (A) and (B) of section 212(a)(6) (8 U.S.C. 1182(a)(6)) are amended to read as follows:
"(A) ALIENS PRESENT WITHOUT ADMISSION OR PAROLE.-
"(i) IN GENERAL.-An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
"(ii) EXCEPTION FOR CERTAIN BATTERED WOMEN AND CHILDREN.-Clause (i) shall not apply to an alien who demonstrates that-
"(I) the alien qualifies for immigrant status under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1),
"(II)(a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse's or parent's family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or (b) the alien's child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse's or parent's family residing in the
same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and
(III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien's unlawful entry into the United States.
"(B) FAILURE TO ATTEND REMOVAL PROCEEDING.-Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien's inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien's subsequent departure or removal is inadmissible. ".
(2) TRANSITION FOR BATTERED SPOUSE OR CHILD PROVISION.-The requirements of subclauses (II) and (III) of section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, as inserted by paragraph (1), shall not apply to an alien who demonstrates that the alien first arrived in the United States before the title III-A effective date (described in section 309(a) of this division).
(d) ADJUSTMENT IN GROUNDS FOR DEPORTATION.-Section 241 (8 U.S.C. 1251), before redesignation as section 237 by section 305(a)(2) of this division, is amended-
(1) in the matter before paragraph (1) of subsection (a), by striking "in the United States" and inserting "in and admitted to the United States";
(2) in subsection (a)(1), by striking "EXCLUDABLE" each place it appears and inserting "INADMISSIBLE";
(3) in subsection (a)(1)(A), by striking "excludable" and inserting " inadmissible"; and
(4) by amending subparagraph (B) of subsection (a)(1) to read as follows:
"(B) PRESENT IN VIOLATION OF LAW.-Any alien who is present in the United States in violation of this Act or any other law of the United States is deportable.
SEC. 302. INSPECTION OF ALIENS; EXPEDITED REMOVAL OF INADMISSIBLE ARRIVING ALIENS; REFERRAL FOR HEARING (REVISED SECTION 235).
(a) IN GENERAL.-Section 235 (8 U.S.C. 1225) is amended to read as follows:
INSPECTION BY IMMIGRATION OFFICERS; EXPEDITED REMOVAL OF INADMISSIBLE ARRIVING ALIENS; REFERRAL FOR HEARING"
"SEC. 235. (a) INSPECTION.-
"(1) ALIENS TREATED AS APPLICANTS FOR ADMISSION.-An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this Act an applicant for admission.
"(2) STOWAWAYS.-An arriving alien who is a stowaway is not eligible to apply for admission or to be admitted and shall be ordered removed upon inspection by an immigration officer. Upon such inspection if the alien indicates an intention to apply for asylum under section 208 or a fear of persecution, the officer shall refer the alien for an interview under subsection (b)(1)(B). A stowaway may apply for asylum only if the stowaway is found to have a credible fear of persecution under subsection (b)(1)(B). In
no case may a stowaway be considered an applicant for admission or eligible for a hearing under section 240.
"(3) INSPECTION.-All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.
"(4) WITHDRAWAL OF APPLICATION FOR ADMISSION.-An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.
"(5) STATEMENTS.-An applicant for admission may be required to state under oath any information sought by an immigration officer regarding the purposes and intentions of the applicant in seeking admission to the United States, including the applicant's intended length of stay and whether the applicant intends to remain permanently or become a United States citizen, and whether the applicant is inadmissible.
"(b) INSPECTION OF APPLICANTS FOR ADMISSION.-
"(1) INSPECTION OF ALIENS ARRIVING IN THE UNITED STATES AND CERTAIN OTHER ALIENS WHO HAVE NOT BEEN ADMITTED OR PAROLED.-
"(A) SCREENING.-
"(i) IN GENERAL.-If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause
"(ii) CLAIMS FOR ASYLUM.-If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7) and the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).
"(iii) APPLICATION TO CERTAIN OTHER ALIENS.-
"(I) IN GENERAL.-The Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.
"(II) ALIENS DESCRIBED.-An alien described in this clause is an alien who is notdescribed in subparagraph (F), who has not been admitted or paroled into theUnited States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.
"(B) ASYLUM INTERVIEWS.-
"(i) CONDUCT BY ASYLUM OFFICERS.-An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General.
"(ii) REFERRAL OF CERTAIN ALIENS.-If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.
"(iii) REMOVAL WITHOUT FURTHER REVIEW IF NO CREDIBLE FEAR OF PERSECUTION.-
"(I) IN GENERAL.-Subject to subclause (III), if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.
"(II) RECORD OF DETERMINATION.-The officer shall prepare a written record of a determination under subclause (I). Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer's analysis of why, in the light of such facts, the alien has not established a credible fear of persecution. A copy of the officer's interview notes shall be attached to the written summary.
"(III) REVIEW OF DETERMINATION.-The Attorney General shall provide by regulation and upon the alien's request for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within
24 hours, but in no case later than 7 days after the date of the determination under subclause (I).
"(IV) MANDATORY DETENTION.-Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.
"(iv) INFORMATION ABOUT INTERVIEWS.-The Attorney General shall provide information concerning the asylum interview described in this subparagraph to aliens who may be eligible. An alien who is eligible for such interview may consult with a person or persons of the alien's choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.
"(v) CREDIBLE FEAR OF PERSECUTION DEFINED.-For purposes of this subparagraph, the term 'credible fear of persecution' means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.
"(C) LIMITATION ON ADMINISTRATIVE REVIEW.-Except as provided in subparagraph (B)(iii)(III), a removal order entered in accordance with subparagraph (A)(i) or (B)(iii)(I) is not subject to administrative appeal, except that the Attorney General shall provide by regulation for prompt review of such an order under subparagraph (A)(i) against an alien who claims under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, after having been warned of the penalties for
falsely making such claim under such conditions, to have been lawfully admitted for permanent residence, to have been admitted as a refugee under section 207, or to have been granted asylum under section 208.
"(D) LIMIT ON COLLATERAL ATTACKS.-In any action brought against an alien under section 275(a) or section 276, the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i) or (B)(iii).
"(E) ASYLUM OFFICER DEFINED.-As used in this paragraph, the term 'asylum officer' means an immigration officer who-
"(i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 208, and
"(ii) is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.
"(F) EXCEPTION.-Subparagraph (A) shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.
"(2) INSPECTION OF OTHER ALIENS.-
"(A) IN GENERAL.-Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.
"(B) EXCEPTION.-Subparagraph (A) shall not apply to an alien-
"(i) who is a crewman,
"(ii) to whom paragraph (1) applies, or
"(iii) who is a stowaway.
"(C) TREATMENT OF ALIENS ARRIVING FROM CONTIGUOUS TERRITORY.-In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240.
"(3) CHALLENGE OF DECISION.-The decision of the examining immigration officer, if favorable to the admission of any alien, shall be subject to challenge by any other immigration officer and such challenge shall operate to take the alien whose privilege to be admitted is so challenged, before an immigration judge for a proceeding under section 240.
"(c) REMOVAL OF ALIENS INADMISSIBLE ON SECURITY AND RELATED GROUNDS.-
"(1) REMOVAL WITHOUT FURTHER HEARING.-If an immigration officer or an immigration judge suspects that an arriving alien may be inadmissible under subparagraph (A) (other than clause (ii)), (B), or (C) of section 212(a)(3), the officer or judge shall-
"(A) order the alien removed, subject to review under paragraph (2);
"(B) report the order of removal to the Attorney General; and
"(C) not conduct any further inquiry or hearing until ordered by the Attorney General.
"(2) REVIEW OF ORDER.-(A) The Attorney General shall review orders issued under paragraph (1).
"(B) If the Attorney General-
"(i) is satisfied on the basis of confidential information that the alien is inadmissible under subparagraph (A) (other than clause (ii)), (B), or (C) of section 212(a)(3), and
"(ii) after consulting with appropriate security agencies of the United States Government, concludes that disclosure of the information would be prejudicial to the public interest, safety, or security, the Attorney General may order the alien removed without further inquiry or hearing by an immigration judge.
"(C) If the Attorney General does not order the removal of the alien under subparagraph (B), the Attorney General shall specify the further inquiry or hearing that shall be conducted in the case.
"(3) SUBMISSION OF STATEMENT AND INFORMATION.-The alien or the alien's representative may submit a written statement and additional information for consideration by the Attorney General.
"(d) AUTHORITY RELATING TO INSPECTIONS.-
"(1) AUTHORITY TO SEARCH CONVEYANCES.-Immigration officers are authorized to board and search any vessel, aircraft, railway car, or other conveyance or vehicle in which they believe aliens are being brought into the United States.
"(2) AUTHORITY TO ORDER DETENTION AND DELIVERY OF ARRIVING ALIENS.- Immigration officers are authorized to order an owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft bringing an alien (except an alien crewmember) to the United States-
"(A) to detain the alien on the vessel or at the airport of arrival, and
"(B) to deliver the alien to an immigration officer for inspection or to a medical officer for examination.
"(3) ADMINISTRATION OF OATH AND CONSIDERATION OF EVIDENCE.-The Attorney General and any immigration officer shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service.
"(4) SUBPOENA AUTHORITY.-(A) The Attorney General and any immigration officer shall have power to require by subpoena the attendance and testimony of witnesses before immigration officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and to that end may invoke the aid of any c
ourt of the United States.
"(B) Any United States district court within the jurisdiction of which investigations or inquiries are being conducted by an immigration officer may, in the event of neglect or refusal to respond to a subpoena issued under this paragraph or refusal to testify before an immigration officer, issue an order requiring such persons to appear before an immigration officer, produce books, papers, and documents if demanded, and testify, and any failure to obey such order of the court may be punished by the court as
a contempt thereof.".
(b) GAO STUDY ON OPERATION OF EXPEDITED REMOVAL PROCEDURES.-
(1) STUDY.-The Comptroller General shall conduct a study on the implementation of the expedited removal procedures under section 235(b)(1) of the Immigration and Nationality Act, as amended by subsection (a). The study shall examine-
(A) the effectiveness of such procedures in deterring illegal entry,
(B) the detention and adjudication resources saved as a result of the procedures,
(C) the administrative and other costs expended to comply with the provision,
(D) the effectiveness of such procedures in processing asylum claims by undocumented aliens who assert a fear of persecution, including the accuracy of credible fear determinations, and
(E) the cooperation of other countries and air carriers in accepting and returning aliens removed under such procedures.
(2) REPORT.-By not later than 18 months after the date of the enactment of this Act, the Comptroller General shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report on the study conducted under paragraph (1).
SEC. 303. APPREHENSION AND DETENTION OF ALIENS (REVISED SECTION 236).
(a) IN GENERAL.-Section 236 (8 U.S.C. 1226) is amended to read as follows:
"APPREHENSION AND DETENTION OF ALIENS
"SEC. 236. (a) ARREST, DETENTION, AND RELEASE.-On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General-
"(1) may continue to detain the arrested alien; and
"(2) may release the alien on-
"(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
"(B) conditional parole; but
"(3) may not provide the alien with work authorization (including an ' employment authorized' endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
"(b) REVOCATION OF BOND OR PAROLE.-The Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien.
"(c) DETENTION OF CRIMINAL ALIENS.-
"(1) CUSTODY.-The Attorney General shall take into custody any alien who-
"(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2),
"(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),
"(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentence to a term of imprisonment of at least 1 year, or
"(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
"(2) RELEASE.-The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisf
ies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
"(d) IDENTIFICATION OF CRIMINAL ALIENS.-(1) The Attorney General shall devise and implement a system-
"(A) to make available, daily (on a 24-hour basis), to Federal, State, and local authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;
"(B) to designate and train officers and employees of the Service to serve as a liaison to Federal, State, and local law enforcement and correctional agencies and courts with respect to the arrest, conviction, and release of any alien charged with an aggravated felony; and
"(C) which uses computer resources to maintain a current record of aliens who have been convicted of an aggravated felony, and indicates those who have been removed.
"(2) The record under paragraph (1)(C) shall be made available-
"(A) to inspectors at ports of entry and to border patrol agents at sector headquarters for purposes of immediate identification of any alien who was previously ordered removed and is seeking to reenter the United States, and
"(B) to officials of the Department of State for use in its automated visa lookout system.
"(3) Upon the request of the governor or chief executive officer of any State, the Service shall provide assistance to State courts in the identification of aliens unlawfully present in the United States pending criminal prosecution.
"(e) JUDICIAL REVIEW.-The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.".
(1) IN GENERAL.-The amendment made by subsection (a) shall become effective on the title III-A effective date.
(2) NOTIFICATION REGARDING CUSTODY.-If the Attorney General, not later than 10 days after the date of the enactment of this Act, notifies in writing the Committees on the Judiciary of the House of Representatives and the Senate that there is insufficient detention space and Immigration and Naturalization Service personnel available to carry out section 236(c) of the Immigration and Nationality Act, as amended by subsection (a), or the amendments made by section 440(c) of Public Law 104-132, the provisions i
n paragraph (3) shall be in effect for a 1-year period beginning on the date of such notification, instead of such section or such amendments. The Attorney General may extend such 1-year period for an additional year if the Attorney General provides the same notice not later than 10 days before the end of the first 1-year period. After the end of such 1-year or 2-year periods, the provisions of such section 236(c) shall apply to individuals released after such periods.
(3) TRANSITION PERIOD CUSTODY RULES.-
(A) IN GENERAL.-During the period in which this paragraph is in effect pursuant to paragraph (2), the Attorney General shall take into custody any alien who-
(i) has been convicted of an aggravated felony (as defined under section 101(a)(43) of the Immigration and Nationality Act, as amended by section 321 of this division),
(ii) is inadmissible by reason of having committed any offense covered in section 212(a)(2) of such Act,
(iii) is deportable by reason of having committed any offense covered in section 241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act (before redesignation under this subtitle), or
(iv) is inadmissible under section 212(a)(3)(B) of such Act or deportable under section 241(a)(4)(B) of such Act (before redesignation under this subtitle),
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(B) RELEASE.-The Attorney General may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii) and-
(i) the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding, or
(ii) the alien was not lawfully admitted to the United States, cannot be removed because the designated country of removal will not accept the alien, and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.
SEC. 304. REMOVAL PROCEEDINGS; CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS; VOLUNTARY DEPARTURE (REVISED AND NEW SECTIONS 239 TO 240C).
(a) IN GENERAL.-Chapter 4 of title II is amended-
(1) by redesignating section 239 (8 U.S.C. 1229) as section 234 and by moving such section to immediately follow section 233;
(2) by redesignating section 240 (8 U.S.C. 1230) as section 240C; and
(3) by inserting after section 238 the following new sections:
"INITIATION OF REMOVAL PROCEEDINGS
"SEC. 239. (a) NOTICE TO APPEAR.-
"(1) IN GENERAL.-In removal proceedings under section 240, written notice (in this section referred to as a 'notice to appear') shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) specifying the following:
"(A) The nature of the proceedings against the alien.
"(B) The legal authority under which the proceedings are conducted.
"(C) The acts or conduct alleged to be in violation of law.
"(D) The charges against the alien and the statutory provisions alleged to have been violated.
"(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).
"(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 240.
"(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number.
"(iii) The consequences under section 240(b)(5) of failure to provide address and telephone information pursuant to this subparagraph.
"(G)(i) The time and place at which the proceedings will be held.
"(ii) The consequences under section 240(b)(5) of the failure, except under exceptional circumstances, to appear at such proceedings.
"(2) NOTICE OF CHANGE IN TIME OR PLACE OF PROCEEDINGS.-
"(A) IN GENERAL.-In removal proceedings under section 240, in the case of any change or postponement in the time and place of such proceedings, subject to subparagraph (B) a written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) specifying-
"(i) the new time or place of the proceedings, and
"(ii) the consequences under section 240(b)(5) of failing, except under exceptional circumstances, to attend such proceedings.
"(B) EXCEPTION.-In the case of an alien not in detention, a written notice shall not be required under this paragraph if the alien has failed to provide the address required under paragraph (1)(F).
"(3) CENTRAL ADDRESS FILES.-The Attorney General shall create a system to record and preserve on a timely basis notices of addresses and telephone numbers (and changes) provided under paragraph (1)(F).
"(b) SECURING OF COUNSEL.-
"(1) IN GENERAL.-In order that an alien be permitted the opportunity to secure counsel before the first hearing date in proceedings under section 240, the hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear, unless the alien requests in writing an earlier hearing date.
"(2) CURRENT LISTS OF COUNSEL.-The Attorney General shall provide for lists (updated not less often than quarterly) of persons who have indicated their availability to represent pro bono aliens in proceedings under section 240. Such lists shall be provided under subsection (a)(1)(E) and otherwise made generally available.
"(3) RULE OF CONSTRUCTION.-Nothing in this subsection may be construed to prevent the Attorney General from proceeding against an alien pursuant to section 240 if the time period described in paragraph (1) has elapsed and the alien has failed to secure counsel.
"(c) SERVICE BY MAIL.-Service by mail under this section shall be sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with subsection (a)(1)(F).
"(d) PROMPT INITIATION OF REMOVAL.-(1) In the case of an alien who is convicted of an offense which makes the alien deportable, the Attorney General shall begin any removal proceeding as expeditiously as possible after the date of the conviction.
"(2) Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
"REMOVAL PROCEEDINGS
"SEC. 240. (a) PROCEEDING.-
"(1) IN GENERAL.-An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.
"(2) CHARGES.-An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section 212(a) or any applicable ground of deportability under section 237(a).
"(3) EXCLUSIVE PROCEDURES.-Unless otherwise specified in this Act, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. Nothing in this section shall affect proceedings conducted pursuant to section 238.
"(b) CONDUCT OF PROCEEDING.-
"(1) AUTHORITY OF IMMIGRATION JUDGE.-The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. The immigration judge may issue subpoenas for the attendance of witnesses and presentation of evidence. The immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this Act.
"(2) FORM OF PROCEEDING.-
"(A) IN GENERAL.-The proceeding may take place-
"(i) in person,
"(ii) where agreed to by the parties, in the absence of the alien,
"(iii) through video conference, or
"(iv) subject to subparagraph (B), through telephone conference.
"(B) CONSENT REQUIRED IN CERTAIN CASES.-An evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved after the alien has been advised of the right to proceed in person or through video conference.
"(3) PRESENCE OF ALIEN.-If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.
"(4) ALIENS RIGHTS IN PROCEEDING.-In proceedings under this section, under regulations of the Attorney General-
"(A) the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings,
"(B) the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross- examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this Act, and
"(C) a complete record shall be kept of all testimony and evidence produced at the proceeding.
"(5) CONSEQUENCES OF FAILURE TO APPEAR.-
"(A) IN GENERAL.-Any alien who, after written notice required under paragraph (1) or (2) of section 239(a) has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2)).
The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under section 239(a)(1)(F).
"(B) NO NOTICE IF FAILURE TO PROVIDE ADDRESS INFORMATION.-No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 239(a)(1)(F).
"(C) RESCISSION OF ORDER.-Such an order may be rescinded only-
"(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1)), or
"(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 239(a) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.
The filing of the motion to reopen described in clause (i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge.
"(D) EFFECT ON JUDICIAL REVIEW.-Any petition for review under section 242 of an order entered in absentia under this paragraph shall (except in cases described in section 242(b)(5)) be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien's not attending the proceeding, and (iii) whether or not the alien is removable.
"(E) ADDITIONAL APPLICATION TO CERTAIN ALIENS IN CONTIGUOUS TERRITORY.-The preceding provisions of this paragraph shall apply to all aliens placed in proceedings under this section, including any alien who remains in a contiguous foreign territory pursuant to section 235(b)(2)(C).
"(6) TREATMENT OF FRIVOLOUS BEHAVIOR.-The Attorney General shall, by regulation-
"(A) define in a proceeding before an immigration judge or before an appellate administrative body under this title, frivolous behavior for which attorneys may be sanctioned,
"(B) specify the circumstances under which an administrative appeal of a decision or ruling will be considered frivolous and will be summarily dismissed, and
"(C) impose appropriate sanctions (which may include suspension and disbarment) in the case of frivolous behavior.
Nothing in this paragraph shall be construed as limiting the authority of the Attorney General to take actions with respect to inappropriate behavior.
"(7) LIMITATION ON DISCRETIONARY RELIEF FOR FAILURE TO APPEAR.-Any alien against whom a final order of removal is entered in absentia under this subsection and who, at the time of the notice described in paragraph (1) or (2) of section 239(a), was provided oral notice, either in the alien's native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined
in subsection (e)(1)) to attend a proceeding under this section, shall not be eligible for relief under section 240A, 240B, 245, 248, or 249 for a period of 10 years after the date of the entry of the final order of removal.
"(c) DECISION AND BURDEN OF PROOF.-
"(1) DECISION.-
"(A) IN GENERAL.-At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing.
"(B) CERTAIN MEDICAL DECISIONS.-If a medical officer or civil surgeon or board of medical officers has certified under section 232(b) that an alien has a disease, illness, or addiction which would make the alien inadmissible under paragraph (1) of section 212(a), the decision of the immigration judge shall be based solely upon such certification.
"(2) BURDEN ON ALIEN.-In the proceeding the alien has the burden of establishing-
"(A) if the alien is an applicant for admission, that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212; or
"(B) by clear and convincing evidence, that the alien is lawfully present in the United States pursuant to a prior admission.
In meeting the burden of proof under subparagraph (B), the alien shall have access to the alien's visa or other entry document, if any, and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien's admission or presence in the United States.
"(3) BURDEN ON SERVICE IN CASES OF DEPORTABLE ALIENS.-
"(A) IN GENERAL.-In the proceeding the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.
No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
"(B) PROOF OF CONVICTIONS.-In any proceeding under this Act, any of the following documents or records (or a certified copy of such an official document or record) shall constitute proof of a criminal conviction:
"(i) An official record of judgment and conviction.
"(ii) An official record of plea, verdict, and sentence.
"(iii) A docket entry from court records that indicates the existence of the conviction.
"(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of the existence of the conviction.
"(v) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a State official associated with the State's repository of criminal justice records, that indicates the charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence.
"(vi) Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction.
"(vii) Any document or record attesting to the conviction that is maintained by an official of a State or Federal penal institution, which is the basis for that institution's authority to assume custody of the individual named in the record.
"(C) ELECTRONIC RECORDS.-In any proceeding under this Act, any record of conviction or abstract that has been submitted by electronic means to the Service from a State or court shall be admissible as evidence to prove a criminal conviction if it is-
"(i) certified by a State official associated with the State's repository of criminal justice records as an official record from its repository or by a court official from the court in which the conviction was entered as an official record from its repository, and
"(ii) certified in writing by a Service official as having been received electronically from the State's record repository or the court's record repository.
A certification under clause (i) may be by means of a computer-generated signature and statement of authenticity.
"(4) NOTICE.-If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.
"(5) MOTIONS TO RECONSIDER.-
"(A) IN GENERAL.-The alien may file one motion to reconsider a decision that the alien is removable from the United States.
"(B) DEADLINE.-The motion must be filed within 30 days of the date of entry of a final administrative order of removal.
"(C) CONTENTS.-The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.
"(6) MOTIONS TO REOPEN.-
"(A) IN GENERAL.-An alien may file one motion to reopen proceedings under this section.
"(B) CONTENTS.-The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.
"(C) DEADLINE.-
"(i) IN GENERAL.-Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.
"(ii) ASYLUM.-There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 208 or 241(b)(3) and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discoverd or presented at the previous proceeding.
"(iii) FAILURE TO APPEAR.-The filing of a motion to reopen an order entered pursuant to subsection (b)(5) is subject to the deadline specified in subparagraph (C) of such subsection.
"(d) STIPULATED REMOVAL.-The Attorney General shall provide by regulation for the entry by an immigration judge of an order of removal stipulated to by the alien (or the alien's representative) and the Service. A stipulated order shall constitute a conclusive determination of the alien's removability from the United States.
"(e) DEFINITIONS.-In this section and section 240A:
"(1) EXCEPTIONAL CIRCUMSTANCES.-The term 'exceptional circumstances' refers to exceptional circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.
"(2) REMOVABLE.-The term 'removable' means-
"(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 212, or
"(B) in the case of an alien admitted to the United States, that the alien is deportable under section 237.
"CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS
"SEC. 240A. (a) CANCELLATION OF REMOVAL FOR CERTAIN PERMANENT RESIDENTS.-The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien-
"(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
"(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
"(3) has not been convicted of any aggravated felony.
"(b) CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR CERTAIN NONPERMANENT RESIDENTS.-
"(1) IN GENERAL.-The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien-
"(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
"(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3); and
"(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
"(2) SPECIAL RULE FOR BATTERED SPOUSE OR CHILD.-The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien demonstrates that-
"(A) the alien has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident (or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent);
"(B) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application;
"(C) the alien has been a person of good moral character during such period;
"(D) the alien is not inadmissible under paragraph (2) or (3) of section 212(a), is not deportable under paragraph (1)(G) or (2) through (4) of section 237(a), and has not been convicted of an aggravated felony; and
"(E) the removal would result in extreme hardship to the alien, the alien's child, or (in the case of an alien who is a child) to the alien's parent.
In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
"(3) ADJUSTMENT OF STATUS.-The Attorney General may adjust to the status of an alien lawfully admitted for permanent residence any alien who the Attorney General determines meets the requirements of paragraph (1) or (2). The number of adjustments under this paragraph shall not exceed 4,000 for any fiscal year. The Attorney General shall record the alien's lawful admission for permanent residence as of the date the Attorney General's cancellation of removal under paragraph (1) or (2) or determination under t
his paragraph.
"(c) ALIENS INELIGIBLE FOR RELIEF.-The provisions of subsections (a) and (b)(1) shall not apply to any of the following aliens:
"(1) An alien who entered the United States as a crewman subsequent to June 30, 1964.
"(2) An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J), or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212(e).
"(3) An alien who-
"(A) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training,
"(B) is subject to the two-year foreign residence requirement of section 212(e), and
"(C) has not fulfilled that requirement or received a waiver thereof.
"(4) An alien who is inadmissible under section 212(a)(3) or deportable under section 237(a)(4).
"(5) An alien who is described in section 241(b)(3)(B)(i).
"(6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244(a) or who has been granted relief under section 212(c), as such sections were in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
"(d) SPECIAL RULES RELATING TO CONTINUOUS RESIDENCE OR PHYSICAL PRESENCE.-
"(1) TERMINATION OF CONTINUOUS PERIOD.-For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear under section 239(a) or when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.
"(2) TREATMENT OF CERTAIN BREAKS IN PRESENCE.-An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
"(3) CONTINUITY NOT REQUIRED BECAUSE OF HONORABLE SERVICE IN ARMED FORCES AND PRESENCE UPON ENTRY INTO SERVICE.-The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) shall not apply to an alien who-
"(A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and
"(B) at the time of the alien's enlistment or induction was in the United States.
"(e) ANNUAL LIMITATION.-The Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 244(a) (as in effect before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), of a total of more than 4,000 aliens in any fiscal year. The previous sentence shall apply regardless of when an alien applied for such cancellation and adjustment and whether such an alien had previously applied fo
r suspension of deportation under such section 244(a).
"VOLUNTARY DEPARTURE
"SEC. 240B. (a) CERTAIN CONDITIONS.-
"(1) IN GENERAL.-The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, in lieu of being subject to proceedings under section 240 or prior to the completion of such proceedings, if the alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4)(B).
"(2) PERIOD.-Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 120 days.
"(3) BOND.-The Attorney General may require an alien permitted to depart voluntarily under this subsection to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.
"(4) TREATMENT OF ALIENS ARRIVING IN THE UNITED STATES.-In the case of an alien who is arriving in the United States and with respect to whom proceedings under section 240 are (or would otherwise be) initiated at the time of such alien's arrival, paragraph (1) shall not apply. Nothing in this paragraph shall be construed as preventing such an alien from withdrawing the application for admission in accordance with section 235(a)(4).
"(b) AT CONCLUSION OF PROCEEDINGS.-
"(1) IN GENERAL.-The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 240, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that-
"(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 239(a);
"(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure;
"(C) the alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4); and
"(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.
"(2) PERIOD.-Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days.
"(3) BOND.-An alien permitted to depart voluntarily under this subsection shall be required to 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.
"(c) ALIENS NOT ELIGIBLE.-The Attorney General shall not permit an alien to depart voluntarily under this section if the alien was previously permitted to so depart after having been found inadmissible under section 212(a)(6)(A).
"(d) CIVIL PENALTY FOR FAILURE TO DEPART.-If an alien is permitted to depart voluntarily under this section and fails voluntarily to depart the United States within the time period specified, the alien shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and be ineligible for a period of 10 years for any further relief under this section and sections 240A, 245, 248, and 249. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under th
is subsection.
"(e) ADDITIONAL CONDITIONS.-The Attorney General may by regulation limit eligibility for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection.
"(f) JUDICIAL REVIEW.-No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure under subsection (b), nor shall any court order a stay of an alien's removal pending consideration of any claim with respect to voluntary departure.".
(b) REPEAL OF SECTION 212(c).-Section 212(c) (8 U.S.C. 1182(c)) is repealed.
(c) STREAMLINING REMOVAL OF CRIMINAL ALIENS.-
(1) IN GENERAL.-Section 242A(b)(4) (8 U.S.C. 1252a(b)(4)), as amended by section 442(a) of Public Law 104-132 and before redesignation by section 308(b)(5) of this division, is amended-
(A) by striking subparagraph (D);
(B) by amending subparagraph (E) to read as follows:
"(D) a determination is made for the record that the individual upon whom the notice for the proceeding under this section is served (either in person or by mail) is, in fact, the alien named in such notice;"; and (C) by redesignating subparagraphs (F) and (G) as subparagraph (E) and (F), respectively.
(2) EFFECTIVE DATE.-The amendments made by paragraph (1) shall be effective as if included in the enactment of section 442(a) of Public Law 104- 132.
SEC. 305. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED (NEW SECTION 241).
(a) IN GENERAL.-Title II is further amended-
(1) by striking section 237 (8 U.S.C. 1227),
(2) by redesignating section 241 (8 U.S.C. 1251) as section 237 and by moving such section to immediately follow section 236, and
(3) by inserting after section 240C (as redesignated by section 304(a)(2)) of this division the following new section:
"DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED
"SEC. 241. (a) DETENTION, RELEASE, AND REMOVAL OF ALIENS ORDERED REMOVED.-
"(1) REMOVAL PERIOD.-
"(A) IN GENERAL.-Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the 'removal period').
"(B) BEGINNING OF PERIOD.-The removal period begins on the latest of the following:
"(i) The date the order of removal becomes administratively final.
"(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
"(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
"(C) SUSPENSION OF PERIOD.-The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.
"(2) DETENTION.-During the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible under section 212(a)(2) or 212(a)(3)(B) or deportable under section 237(a)(2) or 237(a)(4)(B).
"(3) SUPERVISION AFTER 90-DAY PERIOD.-If the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General. The regulations shall include provisions requiring the alien-
"(A) to appear before an immigration officer periodically for identification;
"(B) to submit, if necessary, to a medical and psychiatric examination at the expense of the United States Government;
"(C) to give information under oath about the alien's nationality, circumstances, habits, associations, and activities, and other information the Attorney General considers appropriate; and
"(D) to obey reasonable written restrictions on the alien's conduct or activities that the Attorney General prescribes for the alien.
"(4) ALIENS IMPRISONED, ARRESTED, OR ON PAROLE, SUPERVISED RELEASE, OR PROBATION.-
"(A) IN GENERAL.-Except as provided in section 343(a) of the Public Health Service Act (42 U.S.C. 259(a)) and paragraph (2), the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal.
"(B) EXCEPTION FOR REMOVAL OF NONVIOLENT OFFENDERS PRIOR TO COMPLETION OF SENTENCE OF IMPRISONMENT.-The Attorney General is authorized to remove an alien in accordance with applicable procedures under this Act before the alien has completed a sentence of imprisonment-
"(i) in the case of an alien in the custody of the Attorney General, if the Attorney General determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense related to smuggling or harboring of aliens or an offense described in section 101(a)(43)(B), (C), (E), (I), or (L) and (II) the removal of the alien is appropriate and in the best interest of the United States; or
"(ii) in the case of an alien in the custody of a State (or a political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the alien determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense described in section 101(a)(43)(C) or (E)), (II) the removal is appropriate and in the best interest of the State, and (III) submits a written request to the Attorney General that such alien be so r
emoved.
"(C) NOTICE.-Any alien removed pursuant to this paragraph shall be notified of the penalties under the laws of the United States relating to the reentry of deported aliens, particularly the expanded penalties for aliens removed under subparagraph (B).
"(D) NO PRIVATE RIGHT.-No cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien.
"(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS ILLEGALLY REENTERING.-If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the ree
ntry.
"(6) INADMISSIBLE OR CRIMINAL ALIENS.-An alien ordered removed who is inadmissible under section 212, removable under section 237(a)(1)(C), 237(a)(2), or 237(a)(4) or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).
"(7) EMPLOYMENT AUTHORIZATION.-No alien ordered removed shall be eligible to receive authorization to be employed in the United States unless the Attorney General makes a specific finding that-
"(A) the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien, or
"(B) the removal of the alien is otherwise impracticable or contrary to the public interest.
"(b) COUNTRIES TO WHICH ALIENS MAY BE REMOVED.-
"(1) ALIENS ARRIVING AT THE UNITED STATES.-Subject to paragraph (3)-
"(A) IN GENERAL.-Except as provided by subparagraphs (B) and (C), an alien who arrives at the United States and with respect to whom proceedings under section 240 were initiated at the time of such alien's arrival shall be removed to the country in which the alien boarded the vessel or aircraft on which the alien arrived in the United States.
"(B) TRAVEL FROM CONTIGUOUS TERRITORY.-If the alien boarded the vessel or aircraft on which the alien arrived in the United States in a foreign territory contiguous to the United States, an island adjacent to the United States, or an island adjacent to a foreign territory contiguous to the United States, and the alien is not a native, citizen, subject, or national of, or does not reside in, the territory or island, removal shall be to the country in which the alien boarded the vessel that transported the al
ien to the territory or island.
"(C) ALTERNATIVE COUNTRIES.-If the government of the country designated in subparagraph (A) or (B) is unwilling to accept the alien into that country's territory, removal shall be to any of the following countries, as directed by the Attorney General:
"(i) The country of which the alien is a citizen, subject, or national.
"(ii) The country in which the alien was born.
"(iii) The country in which the alien has a residence.
"(iv) A country with a government that will accept the alien into the country's territory if removal to each country described in a previousclause of this subparagraph is impracticable,inadvisable, or impossible.
"(2) OTHER ALIENS.-Subject to paragraph (3)-
"(A) SELECTION OF COUNTRY BY ALIEN.-Except as otherwise provided in this paragraph-
"(i) any alien not described in paragraph (1) who has been ordered removed may designate one country to which the alien wants to be removed, and
"(ii) the Attorney General shall remove the alien to the country the alien so designates.
"(B) LIMITATION ON DESIGNATION.-An alien may designate under subparagraph (A)(i) a foreign territory contiguous to the United States, an adjacent island, or an island adjacent to a foreign territory contiguous to the United States as the place to which the alien is to be removed only if the alien is a native, citizen, subject, or national of, or has resided in, that designated territory or island.
"(C) DISREGARDING DESIGNATION.-The Attorney General may disregard a designation under subparagraph (A)(i) if-
"(i) the alien fails to designate a country promptly;
"(ii) the government of the country does not inform the Attorney General finally, within 30 days after the date the Attorney General first inquires, whether the government will accept the alien into the country;
"(iii) the government of the country is not willing to accept the alien into the country; or
"(iv) the Attorney General decides that removing the alien to the country is prejudicial to the United States.
"(D) ALTERNATIVE COUNTRY.-If an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country-
"(i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or
"(ii) is not willing to accept the alien into the country.
"(E) ADDITIONAL REMOVAL COUNTRIES.-If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General shall remove the alien to any of the following countries:
"(i) The country from which the alien was admitted to the United States.
"(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
"(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.
"(iv) The country in which the alien was born.
"(v) The country that had sovereignty over the alien's birthplace when the alien was born.
"(vi) The country in which the alien's birthplace is located when the alien is ordered removed.
"(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.
"(F) REMOVAL COUNTRY WHEN UNITED STATES IS AT WAR.-When the United States is at war and the Attorney General decides that it is impracticable, inadvisable, inconvenient, or impossible to remove an alien under this subsection because of the war, the Attorney General may remove the alien-
"(i) to the country that is host to a government in exile of the country of which the alien is a citizen or subject if the government of the host country will permit the alien's entry; or
"(ii) if the recognized government of the country of which the alien is a citizen or subject is not in exile, to a country, or a political or territorial subdivision of a country, that is very near the country of which the alien is a citizen or subject, or, with the consent of the government of the country of which the alien is a citizen or subject, to another country.
"(3) RESTRICTION ON REMOVAL TO A COUNTRY WHERE ALIEN'S LIFE OR FREEDOM WOULD BE THREATENED.-
"(A) IN GENERAL.-Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.
"(B) EXCEPTION.-Subparagraph (A) does not apply to an alien deportable under section 237(a)(4)(D) or if the Attorney General decides that-
"(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion;
"(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States;
"(iii) there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or
"(iv) there are reasonable grounds to believe that the alien is a danger to the security of the United States.
For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime. For purposes of clause (iv), an alien who is described
in section 237(a)(4)(B) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.
"(c) REMOVAL OF ALIENS ARRIVING AT PORT OF ENTRY.-
"(1) VESSELS AND AIRCRAFT.-An alien arriving at a port of entry of the United States who is ordered removed either without a hearing under section 235(b)(1) or 235(c) or pursuant to proceedings under section 240 initiated at the time of such alien's arrival shall be removed immediately on a vessel or aircraft owned by the owner of the vessel or aircraft on which the alien arrived in the United States, unless-
"(A) it is impracticable to remove the alien on one of those vessels or aircraft within a reasonable time, or
"(B) the alien is a stowaway-
"(i) who has been ordered removed in accordance with section 235(a)(1),
"(ii) who has requested asylum, and
"(iii) whose application has not been adjudicated or whose asylum application has been denied but who has not exhausted all appeal rights.
"(2) STAY OF REMOVAL.-
"(A) IN GENERAL.-The Attorney General may stay the removal of an alien under this subsection if the Attorney General decides that-
"(i) immediate removal is not practicable or proper; or
"(ii) the alien is needed to testify in the prosecution of a person for a violation of a law of the United States or of any State.
"(B) PAYMENT OF DETENTION COSTS.-During the period an alien is detained because of a stay of removal under subparagraph (A)(ii), the Attorney General may pay from the appropriation 'Immigration and Naturalization Service-Salaries and Expenses'-
"(i) the cost of maintenance of the alien; and
"(ii) a witness fee of $1 a day.
"(C) RELEASE DURING STAY.-The Attorney General may release an alien whose removal is stayed under subparagraph (A)(ii) on-
"(i) the alien's filing a bond of at least $500 with security approved by the Attorney General;
"(ii) condition that the alien appear when required as a witness and for removal; and
"(iii) other conditions the Attorney General may prescribe.
"(3) COSTS OF DETENTION AND MAINTENANCE PENDING REMOVAL.-
"(A) IN GENERAL.-Except as provided in subparagraph (B) and subsection (d), an owner of a vessel or aircraft bringing an alien to the United States shall pay the costs of detaining and maintaining the alien-
"(i) while the alien is detained under subsection (d)(1), and
"(ii) in the case of an alien who is a stowaway, while the alien is being detained pursuant to-
"(I) subsection (d)(2)(A) or (d)(2)(B)(i),
"(II) subsection (d)(2)(B)(ii) or (iii) for the period of time reasonably necessary for the owner to arrange for repatriation or removal of the stowaway, including obtaining necessary travel documents, but not to extend beyond the date on which it is ascertained that such travel documents cannot be obtained from the country to which the stowaway is to be returned, or
"(III) section 235(b)(1)(B)(ii), for a period not to exceed 15 days (excluding Saturdays, Sundays, and holidays) commencing on the first such day which begins on the earlier of 72 hours after the time of the initial presentation of the stowaway for inspection or at the time the stowaway is determined to have a credible fear of persecution.
"(B) NONAPPLICATION.-Subparagraph (A) shall not apply if-
"(i) the alien is a crewmember;
"(ii) the alien has an immigrant visa;
"(iii) the alien has a nonimmigrant visa or other documentation authorizing the alien to apply for temporary admission to the United States and applies for admission not later than 120 days after the date the visa or documentation was issued;
"(iv) the alien has a reentry permit and applies for admission not later than 120 days after the date of the alien's last inspection and admission;
"(v)(I) the alien has a nonimmigrant visa or other documentation authorizing the alien to apply for temporary admission to the United States or a reentry permit;
"(II) the alien applies for admission more than 120 days after the date the visa or documentation was issued or after the date of the last inspection and admission under the reentry permit; and
"(III) the owner of the vessel or aircraft satisfies the Attorney General that the existence of the condition relating to inadmissibility could not have been discovered by exercising reasonable care before the alien boarded the vessel or aircraft; or
"(vi) the individual claims to be a national of the United States and has a United States passport.
"(d) REQUIREMENTS OF PERSONS PROVIDING TRANSPORTATION.-
"(1) REMOVAL AT TIME OF ARRIVAL.-An owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft bringing an alien (except an alien crewmember) to the United States shall-
"(A) receive an alien back on the vessel or aircraft or another vessel or aircraft owned or operated by the same interests if the alien is ordered removed under this part; and
"(B) take the alien to the foreign country to which the alien is ordered removed.
"(2) ALIEN STOWAWAYS.-An owner, agent, master, commanding officer, charterer, or consignee of a vessel or aircraft arriving in the United States with an alien stowaway-
"(A) shall detain the alien on board the vessel or aircraft, or at such place as the Attorney General shall designate, until completion of the inspection of the alien by an immigration officer;
"(B) may not permit the stowaway to land in the United States, except pursuant to regulations of the Attorney General temporarily-
"(i) for medical treatment,
"(ii) for detention of the stowaway by the Attorney General, or
"(iii) for departure or removal of the stowaway; and
"(C) if ordered by an immigration officer, shall remove the stowaway on the vessel or aircraft or on another vessel or aircraft.
The Attorney General shall grant a timely request to remove the stowaway under subparagraph (C) on a vessel or aircraft other than that on which the stowaway arrived if the requester has obtained any travel documents necessary for departure or repatriation of the stowaway and removal of the stowaway will not be unreasonably delayed.
"(3) REMOVAL UPON ORDER.-An owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel, aircraft, or other transportation line shall comply with an order of the Attorney General to take on board, guard safely, and transport to the destination specified any alien ordered to be removed under this Act.
"(e) PAYMENT OF EXPENSES OF REMOVAL.-
"(1) COSTS OF REMOVAL AT TIME OF ARRIVAL.-In the case of an alien who is a stowaway or who is ordered removed either without a hearing under section 235(a)(1) or 235(c) or pursuant to proceedings under section 240 initiated at the time of such alien's arrival, the owner of the vessel or aircraft (if any) on which the alien arrived in the United States shall pay the transportation cost of removing the alien. If removal is on a vessel or aircraft not owned by the owner of the vessel or aircraft on which the a
lien arrived in the United States, the Attorney General may-
"(A) pay the cost from the appropriation 'Immigration and Naturalization Service-Salaries and Expenses'; and
"(B) recover the amount of the cost in a civil action from the owner, agent, or consignee of the vessel or aircraft (if any) on which the alien arrived in the United States.
"(2) COSTS OF REMOVAL TO PORT OF REMOVAL FOR ALIENS ADMITTED OR PERMITTED TO LAND.-In the case of an alien who has been admitted or permitted to land and is ordered removed, the cost (if any) of removal of the alien to the port of removal shall be at the expense of the appropriation for the enforcement of this Act.
"(3) COSTS OF REMOVAL FROM PORT OF REMOVAL FOR ALIENS ADMITTED OR PERMITTED TO LAND.-
"(A) THROUGH APPROPRIATION.-Except as provided in subparagraph (B), in the case of an alien who has been admitted or permitted to land and is ordered removed, the cost (if any) of removal of the alien from the port of removal shall be at the expense of the appropriation for the enforcement of this Act.
"(B) THROUGH OWNER.-
"(i) IN GENERAL.-In the case of an alien described in clause (ii), the cost of removal of the alien from the port of removal may be charged to any owner of the vessel, aircraft, or other transportation line by which the alien came to the United States.
"(ii) ALIENS DESCRIBED.-An alien described in this clause is an alien who-
"(I) is admitted to the United States (other than lawfully admitted for permanent residence) and is ordered removed within 5 years of the date of admission based on a ground that existed before or at the time of admission, or
"(II) is an alien crewman permitted to land temporarily under section 252 and is ordered removed within 5 years of the date of landing.
"(C) COSTS OF REMOVAL OF CERTAIN ALIENS GRANTED VOLUNTARY DEPARTURE.-In the case of an alien who has been granted voluntary departure under section 240B and who is financially unable to depart at the alien's own expense and whose removal the Attorney General deems to be in the best interest of the United States, the expense of such removal may be paid from the appropriation for the enforcement of this Act.
"(f) ALIENS REQUIRING PERSONAL CARE DURING REMOVAL.-
"(1) IN GENERAL.-If the Attorney General believes that an alien being removed requires personal care because of the alien's mental or physical condition, the Attorney General may employ a suitable person for that purpose who shall accompany and care for the alien until the alien arrives at the final destination.
"(2) COSTS.-The costs of providing the service described in paragraph (1) shall be defrayed in the same manner as the expense of removing the accompanied alien is defrayed under this section.
"(g) PLACES OF DETENTION.-
"(1) IN GENERAL.-The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal. When United States Government facilities are unavailable or facilities adapted or suitably located for detention are unavailable for rental, the Attorney General may expend from the appropriation 'Immigration and Naturalization Service- Salaries and Expenses', without regard to section 3709 of the Revised Statutes (41 U.S.C. 5), amounts necessary to acquire la
nd and to acquire, build, remodel, repair, and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention.
"(2) DETENTION FACILITIES OF THE IMMIGRATION AND NATURALIZATION SERVICE.-Prior to initiating any project for the construction of any new detention facility for the Service, the Commissioner shall consider the availability for purchase or lease of any existing prison, jail, detention center, or other comparable facility suitable for such use.
"(h) STATUTORY CONSTRUCTION.-Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.".
(b) REENTRY OF ALIEN REMOVED PRIOR TO COMPLETION OF TERM OF IMPRISONMENT.- Section 276(b) (8 U.S.C. 1326(b)), as amended by section 321(b) of this division, is amended-
(1) by striking "or" at the end of paragraph (2),
(2) by adding "or" at the end of paragraph (3), and
(3) by inserting after paragraph (3) the following new paragraph:
"(4) who was removed from the United States pursuant to section 241(a)(4)(B) who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both.
(c) MISCELLANEOUS CONFORMING AMENDMENT.-Section 212(a)(4) (8 U.S.C. 1182(a)(4)), as amended by section 621(a) of this division, is amended by striking "241(a)(5)(B)" each place it appears and inserting "237(a)(5)(B)".
SEC. 306. APPEALS FROM ORDERS OF REMOVAL (NEW SECTION 242).
(a) IN GENERAL.-Section 242 (8 U.S.C. 1252) is amended-
(1) by redesignating subsection (j) as subsection (i) and by moving such subsection and adding it at the end of section 241, as inserted by section 305(a)(3) of this division; and
(2) by amending the remainder of section 242 to read as follows:
"JUDICIAL REVIEW OF ORDERS OF REMOVAL
"SEC. 242. (a) APPLICABLE PROVISIONS.-
"(1) GENERAL ORDERS OF REMOVAL.-Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 235(b)(1)) is governed only by chapter 158 of title 28 of the United States Code, except as provided in subsection (b) and except that the court may not order the taking of additional evidence under section 2347(c) of such title.
"(2) MATTERS NOT SUBJECT TO JUDICIAL REVIEW.-
"(A) REVIEW RELATING TO SECTION 235(b)(1).-Notwithstanding any other provision of law, no court shall have jurisdiction to review-
"(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 235(b)(1),
"(ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section,
"(iii) the application of such section to individual aliens, including the determination made under section 235(b)(1)(B), or
"(iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 235(b)(1).
"(B) DENIALS OF DISCRETIONARY RELIEF.-Notwithstanding any other provision of law, no court shall have jurisdiction to review-
"(i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or
"(ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General, other than the granting of relief under section 208(a).
"(C) ORDERS AGAINST CRIMINAL ALIENS.-Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 212(a)(2) or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 237(a)(2)(A)(i).
"(3) TREATMENT OF CERTAIN DECISIONS.-No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in section 240(c)(1)(B).
"(b) REQUIREMENTS FOR REVIEW OF ORDERS OF REMOVAL.-With respect to review of an order of removal under subsection (a)(1), the following requirements apply:
"(1) DEADLINE.-The petition for review must be filed not later than 30 days after the date of the final order of removal.
"(2) VENUE AND FORMS.-The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs.
"(3) SERVICE.-
"(A) IN GENERAL.-The respondent is the Attorney General. The petition shall be served on the Attorney General and on the officer or employee of the Service in charge of the Service district in which the final order of removal under section 240 was entered.
"(B) STAY OF ORDER.-Service of the petition on the officer or employee does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise.
"(C) ALIEN'S BRIEF.-The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unles
s a manifest injustice would result.
"(4) SCOPE AND STANDARD FOR REVIEW.-Except as provided in paragraph (5)(B)-
"(A) the court of appeals shall decide the petitiononly on the administrative record on which the order of removal is based,
"(B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,
"(C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and
"(D) the Attorney General's discretionary judgment whether to grant relief under section 208(a) shall be conclusive unless manifestly contrary to the law and an abuse of discretion.
"(5) TREATMENT OF NATIONALITY CLAIMS.-
"(A) COURT DETERMINATION IF NO ISSUE OF FACT.-If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
"(B) TRANSFER IF ISSUE OF FACT.-If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of title 28,
United States Code.
"(C) LIMITATION ON DETERMINATION.-The petitioner may have such nationality claim decided only as provided in this paragraph.
"(6) CONSOLIDATION WITH REVIEW OF MOTIONS TO REOPEN OR RECONSIDER.-When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.
"(7) CHALLENGE TO VALIDITY OF ORDERS IN CERTAIN CRIMINAL PROCEEDINGS.-
"(A) IN GENERAL.-If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating section 243(a) may challenge the validity of the order in the criminal proceeding only by filing a separate motion before trial. The district court, without a jury, shall decide the motion before trial.
"(B) CLAIMS OF UNITED STATES NATIONALITY.-If the defendant claims in the motion to be a national of the United States and the district court finds that-
"(i) no genuine issue of material fact about the defendant's nationality is presented, the courtshall decide the motion only on the administrative record on which the removal order is based and the administrative findings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or
"(ii) a genuine issue of material fact about the defendant's nationality is presented, the courtshall hold a new hearing on the nationality claim and decide that claim as if an action had beenbrought under section 2201 of title 28, United States Code.
The defendant may have such nationality claim decided only as provided in this subparagraph.
"(C) CONSEQUENCE OF INVALIDATION.-If the districtcourt rules that the removal order is invalid, the courtshall dismiss the indictment for violation of section 243(a). The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 days after the date of the dismissal.
"(D) LIMITATION ON FILING PETITIONS FOR REVIEW.-The defendant in a criminal proceeding under section 243(a) may not file a petition for review under subsection (a) during the criminal proceeding.
"(8) CONSTRUCTION.-This subsection-
"(A) does not prevent the Attorney General, after a final order of removal has been issued, from detainingthe alien under section 241(a);
"(B) does not relieve the alien from complying with section 241(a)(4) and section 243(g); and
"(C) does not require the Attorney General to defer removal of the alien.
"(9) CONSOLIDATION OF QUESTIONS FOR JUDICIAL REVIEW.-Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section.
"(c) REQUIREMENTS FOR PETITION.-A petition for review or for habeas corpus of an order of removal-
"(1) shall attach a copy of such order, and
"(2) shall state whether a court has upheld the validity of the order, and, if so, shall state the name of the court, the date of the court's ruling, and the kind of proceeding.
"(d) REVIEW OF FINAL ORDERS.-A court may review a final order of removal only if-
"(1) the alien has exhausted all administrative remedies available to the alien as of right, and
"(2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.
"(e) JUDICIAL REVIEW OF ORDERS UNDER SECTION 235(b)(1).-
"(1) LIMITATIONS ON RELIEF.-Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may-
"(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 235(b)(1) except as specifically authorized in a subsequent paragraph of this subsection, or
"(B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection.
"(2) HABEAS CORPUS PROCEEDINGS.-Judicial review of any determination made under section 235(b)(1) is available in habeas corpus proceedings, but shall be limited to determinations of-
"(A) whether the petitioner is an alien,
"(B) whether the petitioner was ordered removed under such section, and
"(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 207, or has been granted asylum under section 208, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 235(b)(1)(C).
"(3) CHALLENGES ON VALIDITY OF THE SYSTEM.-
"(A) IN GENERAL.-Judicial review of determinations under section 235(b) and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of-
"(i) whether such section, or any regulation issued to implement such section, is constitutional; or
"(ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this title or is otherwise in violation of law.
"(B) DEADLINES FOR BRINGING ACTIONS.-Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented.
"(C) NOTICE OF APPEAL.-A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order.
"(D) EXPEDITIOUS CONSIDERATION OF CASES.-It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph.
"(4) DECISION.-In any case where the court determines that the petitioner-
"(A) is an alien who was not ordered removed under section 235(b)(1), or
"(B) has demonstrated by a preponderance of the evidence that the alien is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 207, or has been granted asylum under section 208, the court may order no remedy or relief other than to require that the petitioner be provided a hearing in accordance with section 240. Any alien who is provided a hearing under section 240 pursuant to this paragraph may thereafter obtain judicial review of any resulting final order of re
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