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Public Statements

Statements on Introduced Bills and Joint Resolutions - S. 2528

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Date:
Location: Washington, DC


STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. KENNEDY (for himself, Mr. LEAHY, Mr. DURBIN, Mr. FEINGOLD, and Mr. CORZINE):

S. 2528. A bill to restore civil liberties under the First Amendment, the Immigration and Nationality Act, and the Foreign Intelligence Surveillance Act, and for other purposes; to the Committee on the Judiciary.

Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues in introducing the Civil Liberties Restoration Act of 2004.

The attacks of September 11 changed this nation forever. Much has been done since then to combat the threat of terrorism and make America safer. But not every measure or policy adopted after 9/11 has been effective, legal, or fair. The strengthening of security has sometimes meant the weakening of civil liberties. Often, the Bush Administration has misused the fear of terrorism as an excuse to ignore basic rights in our society.

Immigrants, especially Arabs and Muslims, became targets as the Administration carried out roundups of individuals based on national origin and religion, rather than any specific assessment of danger. Abusive detention practices took place. Registration programs have made criminal suspects out of legal immigrants.

These changes were implemented without Congressional consultation or approval. They have swept much too broadly and eliminated necessary checks and balances that prevent abuse. They have squandered our limited resources and have been more successful in alienating immigrant communities than in apprehending terrorists. We cannot allow fear to trump and trample the values upon which our country was founded. Our Nation can be both secure and free.

The Civil Liberties Restoration Act of 2004 will provide basic civil liberties protections, and restore balance and fairness to our laws in the treatment of immigrants. It will preserve fundamental rights without endangering national security. It will restore the confidence of immigrant communities, especially those unfairly targeted by recent and current policies.

It will place reasonable limitations on closed immigration hearings. On September 21, 2001, the Attorney General ordered immigration judges to close all hearings on individuals detained in the 9/11 investigation. In a highly critical report issued by the Inspector General of the Justice Department in April 2003 we learned that many were arrested as a result of "chance encounters or tenuous connections" to the investigation, rather than "any genuine indications of a possible connection with or possession of information about terrorist activity."

Nevertheless, over 600 immigration hearings were held in secret. Visitors, the press and even family members of the detainees were excluded. Consistent with the First Amendment, our legislation authorizes the closing of immigration hearings only when the government can demonstrate a compelling privacy or national security interest.

The bill will restore other due process protections weakened after 9/11. Before that, the INS was required to give notice to detained non-citizens within 24 hours of arrest, informing them of the charges against them. On September 20, 2001, Attorney General Ashcroft issued a regulation extending that period to 48 hours or "an additional reasonable period of time" in "emergency or other extraordinary circumstances."

This open-ended change led to serious abuses. As the Inspector General reported, some detainees were held for more than a month after their arrest, without being told of the charges against them. Often they were held in harsh and restrictive conditions and prevented from consulting with their attorneys.

Our legislation will require a charging document to be served within 48 hours of an arrest or detention. Non-citizens held for more than 48 hours would have to be brought before an immigration judge within 72 hours of their arrest or detention, with an exception for non-citizens who are certified by the Attorney General, based on reasonable grounds, as having engaged in espionage or a terrorist offense.

After 9/11, the Bush Administration also adopted policies that deny bond to many immigrants with no individual assessment of their danger or flight risk. Two examples of this policy were the "hold until cleared" policy criticized by the Inspector General's report, and the Attorney General's precedent decision declaring that all Haitians arriving by sea were a national security threat and must be detained.

Unilateral executive branch decisions mandating detention violate fundamental rights. Blanket detentions of persons who pose no flight risk or harm to the community waste valuable resources that should be used to apprehend criminals and terrorists.

Our legislation will require the Secretary of Homeland Security to provide all detainees with individual assessments to determine whether they pose a flight risk or a threat to public safety, except those in categories specifically designated by Congress as posing a special threat. If the individual is eligible for release, the Secretary must set a reasonable bond or other conditions to guarantee the person's appearance at future proceedings, and this decision would be subject to review by an immigration judge.

The authority of immigration judges was further weakened by an October 2001 regulation that authorizes the Attorney General to stay a decision by an immigration judge to release an individual if bond had originally been denied, or had been set at $10,000 or more. The current regulation goes too far. It allows the government's immigration attorneys to overrule a decision by an immigration judge that an individual does not pose a risk.

The bill puts reasonable limitations on this automatic stay authority. The Board of Immigration Appeals could stay the immigration judge's bond decision for a limited time, only when the government is likely to prevail in appealing that decision and there is a risk of irreparable harm in the absence of a stay.

In early 2002, Attorney General Ashcroft issued a series of "procedural reforms" purportedly designed to eliminate the backlog of cases in the Board of Immigration Appeals. Altering its practices in accordance with the new mandates, the Board has issued thousands of single-member decisions affirming without written opinions the decisions of the immigration judges. Before the changes took effect, 1 in 4 appeals was granted, now only 1 in 10 is granted. Instead of eliminating the backlog, however, the cases have shifted to the federal courts. The number of Board decisions being appealed to the federal courts has increased dramatically. The Ninth Circuit has received over 4,200 immigration appeals, more than four times the usual number.

These so-called reforms highlight the degree to which integrity and impartiality of the immigration courts have been compromised. To correct the problem, the bill establishes an independent regulatory agency within the Department of Justice to administer the immigration court system. Integrity would be restored by enabling Board Members and immigration judges to exercise independent judgment and discretion. The reforms will help ensure that individuals and families receive fair treatment in immigration decisions, which can have profound consequences for immigrants and refugees, such as permanent separation from loved ones, or deportation to countries where they may face persecution and even death.

The Act will also end the infamous National Security Entry-Exit Registration System-the NSEERS program which was launched by Attorney General Ashcroft in August 2002 and which required men from predominately Muslim or Arab countries to be fingerprinted, photographed, and interrogated, based on the absurd notion that terrorists would present themselves for registration and be caught.

As Vincent Cannistraro, former director of Counterterrorism Operations at the CIA, has said, policies like the NSEERS program caused fear and distrust and worked "against intelligence-gathering by law enforcement, particularly the FBI." At a time when we needed vital intelligence information, members of these communities were unfairly stigmatized and discouraged from coming forward to help our law enforcement and counter-terrorism efforts.

According to Department of Homeland Security officials, no one registered under the NSEERS program was ever charged with terrorism. Last December, significant parts of the NSEERS program were suspended. Our bill will terminate it completely, and it will also close removal proceedings for certain individuals targeted under it.

A related issue is the exercise of prosecutorial discretion. More than 14,000 individuals who voluntarily complied with the NSEERS program were placed in removal proceedings for technical immigration violations, even though many of them had relief available to them or were in the process of applying for permanent residence. Immigration officers routinely refused to use their discretion not to arrest these individuals, or not to initiate removal proceedings against them, or not to release them from detention. The result was a massive diversion of resources away from investigations, prosecutions, and removals of criminals and terrorists.

Our bill will codify an immigration memorandum which outlines the parameters for the responsible exercise of prosecutorial discretion. The legislation makes clear that such discretion is not an invitation to violate or ignore the law, but is intended to give the government the flexibility to maximize its allocation of resources. Exercise of such discretion is particularly appropriate in light of the complexity of the immigration laws, the harshness of the consequences of enforcement, and the importance of conserving limited enforcement resources so that they are available for use against individuals who threaten our safety and security.

Given the problems inherent in the NSEERS program, the government should reconsider all pending NSEERS cases and determine whether a favorable exercise of discretion is warranted. Family ties, humanitarian concerns, and eligibility for relief are positive factors that should be considered in assessing such cases.

Our bill also protects the integrity of the National Crime Information Center database. For decades, in maintaining the database, the Department of Justice was required to obey the Privacy Act, which requires each agency to maintain its records "with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individuals in the determination." In March 2003, Attorney General Ashcroft issued a regulation stating that these requirements no longer applied to the NCIC database, and justified the exemption because "in the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely and complete."

Our legislation requires the Attorney General to comply with the Privacy Act in maintaining the database. Circumventing this statutory obligation poses significant risks not only for individuals whose files may be part of this data system, but also for communities that rely on law enforcement to employ effective, reliable methods for protecting public safety.

This requirement is especially important today. The Attorney General announced last year that information on more than 400,000 persons with removal orders and an unknown number of alleged NSEERS violators would be included in the database. The error rate in immigration records has always been very high-a fact confirmed by numerous reports issued by the
Inspector General. Requiring the Attorney General to comply with the Privacy Act will help prevent inaccurate and unreliable information from contaminating the database and harming individuals and communities.

The bill also protects privacy by ensuring that constitutional limitations apply to secret surveillance. The Patriot Act amended the Foreign Intelligence Service Act to permit surveillance or searches when a "significant purpose", not just the "primary purpose", of the surveillance or search is foreign intelligence. Under current procedures, when such evidence is brought before a court, it is nearly impossible for a criminal defendant to contest its introduction, because the government's application for the search is kept secret. When such evidence is used in criminal cases, the court should disclose the application and related materials to the defendant, subject to the Classified Information Procedures Act, which offers a balanced and effective way to protect both national security information and the rights of defendants.

In addition, the legislation provides that when such information from electronic surveillance and other sources is introduced in a criminal case, disclosure of the surveillance application, order, or other materials is permitted under the procedures in the Classified Information Procedures Act.

Finally, the bill addresses the practice of data-mining. Through comprehensive data-mining, many records that people believe are private can be collected by computer, fed into a database and used by the government without their knowledge. Law enforcement must have the necessary means to protect our safety, but the use of data-mining technology should not be allowed to threaten privacy and civil liberties.

The legislation will require all federal agencies to report to Congress within 90 days and annually in future years on data-mining programs used to find patterns indicating terrorist or other criminal activity and the effect of these programs on civil liberties and privacy, so that Congress can exercise its oversight authority over federal agencies using this technology.

We know that we can protect our nation's security and still respect the basic rights of both citizens and immigrants. The Civil Liberties Restoration Act is a needed effort to end the abuse that has become all too common in the past three years, and Congress has a responsibility to end them. It has been said that our laws are the wise restraints that make us free. The restraints have been weakened in recent years, and we need to make them stronger.

I ask unanimous consent that the text of the bill be printed in the RECORD.

There being no objection, the bill was ordered to be printed in the RECORD, as follows:

S. 2528

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Civil Liberties Restoration Act of 2004".

SEC. 2. FINDINGS.

Congress finds the following:

(1) Fighting terrorism is a priority for our Nation.

(2) As Federal, State, and local law enforcement work tirelessly every day to prevent another terrorist attack, our Nation must continue to work to ensure that law enforcement have the legal tools and resources to do their job.

(3) At the same time, steps that are taken to protect the United States from terrorism should not undermine constitutional rights and protections.

(4) Some of the steps taken by the Administration since September 11, 2001, however, have undermined constitutional rights and protections.

(5) Our nation must strive for both freedom and security.

(6) This Act seeks to restore essential rights and protections without compromising our Nation's safety.

TITLE I-RESTORING FIRST AMENDMENT RIGHTS

SEC. 101. LIMITATION ON CLOSED IMMIGRATION HEARINGS.

(a) IN GENERAL.-Section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) is amended-

(1) by redesignating subsection (e) as subsection (f); and

(2) by inserting after subsection (d) the following new subsection:

"(e) STANDARDS FOR CLOSING REMOVAL HEARINGS.-

"(1) IN GENERAL.-Subject to paragraph (2), a removal proceeding held pursuant to this section shall be open to the public.

"(2) EXCEPTIONS.-Portions of a removal proceeding held pursuant to this section may be closed to the public by an immigration judge on a case by case basis, when necessary-

"(A) to preserve the confidentiality of applications for asylum, withholding of removal, relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Violence Against Women Act of 1994
(Public Law 103-322; 108 Stat. 1902), or the Victims of Trafficking and Violence Prevention Act of 2000 (Public Law 106-386; 114 Stat. 1464), or other applications for relief involving confidential personal information or where portions of the removal hearing involve minors or issues relating to domestic violence, all with the consent of the alien;

"(B) to prevent the disclosure of classified information that threatens the national security of the United States and the safety of the American people; or

"© to prevent the disclosure of the identity of a confidential informant.

"(3) COMPELLING GOVERNMENT INTEREST.-In order for portions of removal proceedings to be closed to the public in accordance with this subsection, the government must show that such closing of the proceedings is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest.".

(b) TECHNICAL AND CONFORMING AMENDMENTS.-Section 240(b) of the Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended-

(1) in paragraph (5)©(i), by striking "subsection (e)(1)" and inserting "subsection (f)(1)"; and

(2) in paragraph (7), by striking "subsection (e)(1)" and inserting "subsection (f)(1)".

TITLE II-PROVIDING DUE PROCESS FOR INDIVIDUALS

SEC. 201. TIMELY SERVICE OF NOTICE.

(a) IN GENERAL.-Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at the end the following:

"(f) NOTICE OF CHARGES.-The Secretary of Homeland Security shall serve a notice to appear on every alien arrested or detained under this Act, except those certified under section 236A(a)(3), within 48 hours of the arrest or detention of such alien. Any alien, except those certified under section 236A(a)(3), held for more than 48 hours shall be brought before an immigration judge within 72 hours of the arrest or detention of such alien. The Secretary of Homeland Security shall-

"(1) document when a notice to appear is served on a detainee in order to determine compliance by the Department of Homeland Security with the 48-hour notice requirement; and

"(2) submit to the Committees on the Judiciary of the Senate and the House of Representatives an annual report concerning the Department of Homeland Security's compliance with such notice requirement.".

(b) APPLICABILITY OF OTHER LAW.-Nothing in section 236(f) of the Immigration and Nationality Act, as added by subsection (a), shall be construed to repeal section 236A of such Act (8 U.S.C. 1226a).

SEC. 202. INDIVIDUALIZED BOND DETERMINATIONS.

(a) IN GENERAL.-Section 236(a) of the Immigration and Nationality Act (8 U.S.C. 1226(a)) is amended-

(1) by striking "On a warrant" and inserting the following:

"(1) IN GENERAL.-On a warrant";

(2) by striking "Except as provided" and all that follows through the end and inserting the following: "This subsection shall apply to all aliens detained pending a decision on their removal or admission, regardless of whether or not they have been admitted to the United States, including any alien found to have a credible fear of persecution under section 235(b)
(1)(B) or any alien admitted or seeking admission under the visa waiver program pursuant to section 217. Except as provided in subsection (c) and pending such decision, the Secretary of Homeland Security shall-

"(A) make an individualized determination as to whether the alien should be released pending administrative and judicial review, to include a determination of whether the alien poses a danger to the safety of other persons or property and is likely to appear for future scheduled proceedings; and

"(B) grant the alien release pending administrative and judicial review under reasonable bond or other conditions, including conditional parole, that will reasonably assure the presence of the alien at all future proceedings, unless the Secretary of Homeland Security determines under subparagraph (A) that the alien poses a danger to the safety of other persons or property or is unlikely to appear for future proceedings.

"(2) INDIVIDUALIZED DETERMINATIONS.-An individualized determination made by the Secretary of Homeland Security pursuant to paragraph (1)(A) shall be reviewable at a hearing held before an immigration judge pursuant to section 240. An immigration judge who reviews an initial bond determination by the Secretary of Homeland Security, or who makes a bond determination prior to a decision by the Secretary of Homeland Security, shall apply the same standards set forth in subparagraphs (A) and (B) of paragraph (1).".

(b) REVOCATION OF BOND OR PAROLE.-Section 236(b) of the Immigration and Nationality Act (8 U.S.C. 1226(b)) is amended by striking "The Attorney General" and all that follows through the period and inserting the following: "The bond or parole determination made pursuant to subsection (a)(1)(B) may be revoked or modified only by an immigration judge in proceedings held pursuant to section 240, and only if the party seeking to revoke or modify the bond or parole determination can establish a change in circumstances. The administrative decision finding the alien removable does not, in and of itself, constitute a change in circumstances. At such a hearing, if changed circumstances are established, the immigration judge shall make a new individualized determination in the manner described in subsection (a).".

© TECHNICAL AND CONFORMING AMENDMENTS.-Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended-

(1) by striking "Attorney General" each place that term appears and inserting "Secretary of Homeland Security"; and

(2) in subsection (e), by striking "Attorney General's" and inserting "Secretary of Homeland Security's".

SEC. 203. LIMITATION ON STAY OF A BOND.

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226), as amended by section 201, is further amended by adding at the end the following:

"(g) STAY OF A BOND DETERMINATION.-An order issued by an immigration judge to release an alien may be stayed by the Board of Immigration Review, for not more than 30 days, only if the Government demonstrates-

"(1) the likelihood of success on the merits;

"(2) irreparable harm to the Government if a stay is not granted;

"(3) that the potential harm to the Government outweighs potential harm to alien; and

"(4) that the grant of a stay is in the interest of the public.".

SEC. 204. IMMIGRATION REVIEW COMMISSION.

(a) ESTABLISHMENT OF COMMISSION.-

(1) IN GENERAL.-There is established within the Department of Justice an independent regulatory agency to be known as the Immigration Review Commission (referred to in this section as the "Commission"). The Executive Office of Immigration Review is hereby abolished and replaced with such Commission.

(2) TRANSFER OF AUTHORITY.-The Commission shall perform all administrative, appellate, and adjudicatory functions that were, prior to the date of enactment of this Act, the functions of the Executive Office of Immigration Review or were performed by any officer or employee of the Executive Office of Immigration Review in the capacity of such officer or employee. Such functions shall not include the policy-making, policy-implementation, investigatory, or prosecutorial functions of the Department of Homeland Security.

(3) ORGANIZATION.-The Commission shall consist of:

(A) The Office of the Director.

(B) The Board of Immigration Review.

© The Office of the Chief Immigration Judge.

(D) The Office of the Chief Administrative Hearing Officer.

(b) OFFICE OF THE DIRECTOR.-

(1) APPOINTMENT.-There shall be as the head of the Commission, a Director who shall be appointed by the President with the advice and consent of the Senate.

(2) TRANSFER OF OFFICES.-The following officers shall be transferred from the Executive Office for Immigration Review to the Office of the Director for the Commission:

(A) Deputy Director.

(B) General Counsel.

© Pro Bono Coordinator.

(D) Public Affairs.

(E) Assistant Director of Management Programs.

(F) Equal Employment Opportunity.

(3) RESPONSIBILITIES.-

(A) The Director shall oversee the administration of the Commission, and the creation of rules and regulations affecting the administration of the courts.

(B) The Director shall appoint a Deputy Director to assist with the duties of the Director and shall have the power to appoint such administrative assistants, attorneys, clerks, and other personnel as may be needed.

© BOARD OF IMMIGRATION REVIEW.-

(1) IN GENERAL.-The Board of Immigration Review (referred to in this section as the "Board") shall perform the appellate functions of the Commission.

(2) APPOINTMENT.-The Board shall be composed of a Chairperson and not less than 14 other immigration appeals judges, appointed by the President, in consultation with the Director. The term of office of each member of the Board shall be 6 years.

(3) CURRENT MEMBERS.-Each individual who is serving as a member of the Board on the date of enactment of this Act shall be appointed to the Board utilizing a system of staggered terms of appointment based on seniority.

(4) MEMBERS.-The Chairperson and each other member of the Board shall be an attorney in good standing of a bar of a State or the District of Columbia and shall have at least 7 years of professional, legal expertise in immigration and nationality law.

(5) CHAIRPERSON DUTIES.-The Chairperson shall-

(A) be responsible, on behalf of the Board, for the administrative operations of the Board and shall have the power to appoint such administrative assistants, attorneys, clerks, and other personnel as may be needed for that purpose;

(B) direct, supervise, and establish internal operating procedures and policies of the Board; and

© designate a member of the Board to act as Chairperson in the Chairperson's absence or unavailability.

(6) BOARD MEMBERS DUTIES.-In deciding the cases before the Board, the Board shall exercise its independent judgment and discretion and may take any action, consistent with its authorities under this section and regulations established in accordance with this section, that is appropriate and necessary for the disposition of such cases.

(7) JURISDICTION.-The Board shall have-

(A) such jurisdiction as was, prior to the date of enactment of this Act, provided by statute or regulation to the Board of Immigration Appeals;

(B) de novo review of any decision by an immigration judge, and any final order of removal; and

© retention of jurisdiction over any case of an alien removed by the United States if the alien's case was pending for consideration before the Board prior to removal of the alien.

(8) ACTING IN PANELS.-

(A) IN GENERAL.-All cases shall be subject to review by a 3 member panel. The Chairperson shall divide the Board into 3 member panels and designate a presiding member of each panel such that-

(i) a majority of the number of Board members authorized to constitute a panel shall constitute a quorum for such panel; and

(ii) each panel may exercise the appropriate authority of the Board that is necessary for the adjudication of cases before it.

(B) FINAL DECISION.-A final decision of a panel shall be considered to be a final decision of the Board.

(9) EN BANC PROCESS.-

(A) IN GENERAL.-The Board may on its own motion, by a majority vote of the Board members, or by direction of the Chairperson, consider any case as the full Board en banc, or reconsider as the full Board en banc any case that has been considered or decided by a 3-member panel or by a limited en banc panel.

(B) QUORUM.-A majority of the Board members shall constitute a quorum of the Board sitting en banc.

(10) DECISIONS OF THE BOARD.-

(A) IN GENERAL.-The decisions of the Board shall constitute final agency action. The precedent decisions of the Board shall be binding on the Department of Homeland Security and the immigration judges.

(B) AFFIRMANCE WITHOUT OPINION.-Upon individualized review of a case, the Board may affirm the decision of an immigration judge without opinion only if the decision of the immigration judge resolved all issues in the case. An affirmance without opinion signifies the Board's adoption of the immigration judge's findings and conclusion in total.

© NOTICE OF APPEAL.-The decision by the Board shall include notice to the alien of the alien's right to file a petition for review in the court of appeals within 30 days of the date of the decision.

(d) OFFICE OF THE CHIEF IMMIGRATION JUDGE.-

(1) ESTABLISHMENT OF OFFICE.-There is established within the Commission an Office of the Chief Immigration Judge to oversee all the immigration courts and their proceedings throughout the United States. The head of the office shall be the Chief Immigration Judge who shall be appointed by the Director.

(2) DUTIES OF THE CHIEF IMMIGRATION JUDGE.-The Chief Immigration Judge shall be responsible for the general supervision, direction, and procurement of resources and facilities, and for the coordination of the schedules of immigration judges to enable the judges to conduct the various programs assigned to them. The Chief Immigration Judge may be assisted by a Deputy Chief Immigration Judge and Assistant Chief Immigration Judge.

(3) APPOINTMENT OF IMMIGRATION JUDGES.-

(A) IN GENERAL.-Immigration judges shall be appointed by the Director, in consultation with the Chief Immigration Judge and the Chair of the Board of Immigration Review. The term of each immigration judge shall be 12 years.

(B) QUALIFICATIONS.-Each immigration judge, including the Chief Immigration Judge, shall be an attorney in good standing of a bar of a State or the District of Columbia and shall have at least 7 years of professional, legal expertise in immigration and nationality law.

© CURRENT MEMBERS.-Each individual who is serving as an immigration judge on the date of enactment of this Act shall be appointed as an immigration judge utilizing a system of staggered terms of appointment based on seniority.

(4) DUTIES OF IMMIGRATION JUDGES.-In deciding the cases before them, immigration judges shall exercise their independent judgment and discretion and may take any action, consistent with their authorities under this section and regulations established in accordance with this section, that is appropriate and necessary for the disposition of such cases.

(5) JURISDICTION AND AUTHORITY OF IMMIGRATION COURTS.-The Immigration Courts shall have such jurisdiction as was, prior to the date of enactment of this Act, provided by statute or regulation to the Immigration Courts within the Executive Office for Immigration Review.

(6) CONTEMPT AUTHORITY.-The contempt authority provided to immigration judges under section 240(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1229a(b)(1)) shall-

(A) be implemented by regulation not later than 120 days after the date of enactment of this Act;

(B) provide that any contempt sanctions, including any civil money penalty, shall be applicable to all parties appearing before the immigration judge and shall be imposed by a single process applicable to all parties.

(e) OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER.-

(1) IN GENERAL.-The Office of the Chief Administrative Hearing Officer shall be headed by a Chief Administrative Hearing Officer who shall be appointed by the Director.

(2) DUTIES AND RESPONSIBILITIES.-The duties and responsibilities of the current Office of the Chief Administrative Hearing Officer shall be transferred to the Commission.

(f) REMOVAL AND REVIEW OF JUDGES.-

(1) IN GENERAL.-Immigration judges and members of the Board of Immigration Review may be removed from office only for good cause-

(A) by the Director, in consultation with the Chair of the Board, in the case of the removal of a member of the Board; or

(B) by the Director, in consultation with the Chief Immigration Judge, in the case of the removal of an immigration judge.

(2) INDEPENDENT JUDGMENT.-No immigration judge or member of the Board shall be removed or otherwise subject to disciplinary or adverse action for their exercise of independent judgment and discretion as prescribed by subsections
©(6) and (d)(4).

(g) REGULATIONS.-Not later than 180 days after the date of enactment of this Act, the Director shall issue regulations to implement this section.

TITLE III-EFFECTIVE LAW ENFORCEMENT

SEC. 301. TERMINATION OF THE NSEERS PROGRAM; ESTABLISHMENT OF REASONABLE PENALTIES FOR FAILURE TO REGISTER.

(a) TERMINATION OF NSEERS.-

(1) IN GENERAL.-The National Security Entry-Exit Registration System (NSEERS) program administered by the Secretary of Homeland Security is hereby terminated.

(2) INTEGRATED ENTRY AND EXIT DATA SYSTEM.-Nothing in this section shall amend the Integrated Entry and Exit Data System established in accordance with section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a).

(3) ADMINISTRATIVE CLOSURE OF REMOVAL PROCEEDINGS.-

(A) IN GENERAL.-All removal proceedings initiated against any alien as a result of the NSEERS program shall be administratively closed. This paragraph shall apply to all aliens who were-

(i) placed in removal proceedings solely for failure to comply with the requirements of the NSEERS program; or
(ii) placed in removal proceedings while complying with the requirements of the NSEERS program and-

(I) had a pending application before the Department of Labor or the Department of Homeland Security for which there is a visa available;

(II) did not have a pending application before the Department of Labor or the Department of Homeland Security for which there is a visa available but were eligible for an immigration benefit; or

(III) were eligible to apply for other forms of relief from removal.

(B) EXCEPTIONS.-This paragraph shall not apply in cases in which the aliens are removable under-

(i) section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)); or

(ii) paragraph (2) or (4) of section 237(a) of that Act (8 U.S.C. 1227(a)(2) or (4)).

(4) MOTIONS TO REOPEN.-Notwithstanding any limitations imposed by law on motions to reopen removal proceedings, any alien who received a final order of removal as a result of the NSEERS program shall be eligible to file a motion to reopen the removal proceeding and apply for any relief from removal that such alien may be eligible to receive.

SEC. 302. EXERCISE OF PROSECUTORIAL DISCRETION.

(a) SENSE OF CONGRESS REGARDING PROSECUTORIAL DISCRETION.-

(1) FINDINGS.-Congress finds the following:

(A) Exercising prosecutorial discretion is not an invitation to violate or ignore the law, rather it is a means by which the resources of the Secretary of Homeland Security may be used to best accomplish the mission of the Department of Homeland Security in administering and enforcing the immigration laws of the United States.

(B) Although a favorable exercise of discretion by any office within the Department of Homeland Security should be respected by other offices of such Department, unless the facts and circumstances in a specific case have changed, the exercise of prosecutorial discretion does not grant lawful status under the immigration laws, and there is no legally enforceable right to the exercise of prosecutorial discretion.

(2) SENSE OF CONGRESS.-It is the sense of Congress that the exercise of prosecutorial discretion does not lessen the commitment of the Secretary of Homeland Security to enforce the immigration laws to the best of the Secretary's ability.

(b) PROSECUTORIAL DISCRETION.-The Secretary of Homeland Security shall exercise prosecutorial discretion in deciding whether to exercise its enforcement powers against an alien. This discretion includes-

(1) focusing investigative resources on particular offenses or conduct;

(2) deciding whom to stop, question, and arrest;

(3) deciding whether to detain certain aliens who are in custody;

(4) settling or dismissing a removal proceeding;

(5) granting deferred action or staying a final removal order;

(6) agreeing to voluntary departure, permitting withdrawal of an application for admission, or taking other action in lieu of removing an alien;

(7) pursuing an appeal; or

(8) executing a removal order.

© FACTORS FOR CONSIDERATION.-The factors that shall be taken into account in deciding whether to exercise prosecutorial discretion favorably toward an alien include-

(1) the immigration status of the alien;

(2) the length of residence in the United States of the alien;

(3) the criminal history of the alien;

(4) humanitarian concerns;

(5) the immigration history of the alien;

(6) the likelihood of ultimately removing the alien;

(7) the likelihood of achieving the enforcement goal by other means;

(8) whether the alien is eligible or is likely to become eligible for other relief;

(9) the effect of such action on the future admissibility of the alien;

(10) current or past cooperation by the alien with law enforcement authorities;

(11) honorable service by the alien in the United States military;

(12) community attention; and

(13) resources available to the Department of Homeland Security.

SEC. 303. CIVIL PENALTIES FOR TECHNICAL VIOLATIONS OF REGISTRATION REQUIREMENTS.

(a) REGISTRATION PENALTIES.-Section 266(a) of the Immigration and Nationality Act (8 U.S.C. 1306(a)) is amended by striking "Any alien" and all that follows through the period and inserting the following: "(1) A civil penalty shall be imposed, in accordance with paragraph (2), on any alien who is required to apply for registration and be fingerprinted under section 262 or 263, who willfully fails or refuses to make such application or be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien as required by such section.

"(2) The Secretary of Homeland Security may levy a civil monetary penalty of up to-

"(A) $100 for a first violation of section 262 or 263;

"(B) $500 for a second violation of section 262 or 263; and

"© $1,000 for each subsequent violation of section 262 or 263 after the second violation.

(b) OTHER PENALTIES.-Section 266(b) of the Immigration and Nationality Act (8 U.S.C. 1306(b)) is amended to read as follows:

"(b)(1) A penalty shall be imposed, in accordance with paragraph (2), on any alien or the parent or legal guardian in the United States of any alien who fails to submit written notice to the Secretary of Homeland Security as required by section 265. No penalty shall be imposed with respect to a failure to submit such notice if the alien establishes that such failure was reasonably excusable or was not willful.

"(2) Except as provided in paragraphs (4) and (5), the Secretary of Homeland Security shall levy a civil monetary penalty of-

"(A) up to $100 against an alien who fails to submit written notice in compliance with section 265;

"(B) up to $500 against an alien for a second violation of section 265; and

"© up to $1,000 for each subsequent violation of section 265 after the second violation.

"(3) Notwithstanding any other provision of this Act, no change of immigration status shall result from failure to submit written notice as required by section 265.

"(4) During the transition period, a failure to comply with section 265 shall not result in a penalty or a change in immigration status. At the conclusion of the transition period, the Secretary of Homeland Security shall collect and maintain statistics concerning all enforcement actions related to this subsection.

"(5) The penalties imposed under this subsection shall not apply to an alien who previously failed to submit a change of address prior to the date of enactment of the Civil Liberties Restoration Act of 2004 or the end of the transition period if the alien submits a change of address within 6 months after the end of the transition period. A penalty shall be imposed, in accordance with paragraph (2), on any alien who fails to submit a change of address within the 6-month period following the transition period.

"(6) In this subsection, the term 'transition period' means the period beginning on the date of enactment of the Civil Liberties Restoration Act of 2004 and ending 1 year after the date of enactment of such Act, at which time the Secretary of Homeland Security shall implement a system to record and preserve on a timely basis addresses provided under section 265.".

SEC. 304. NCIC COMPLIANCE WITH THE PRIVACY ACT.

Data entered into the National Crime Information Center database must meet the accuracy requirements of section 552a of title
5, United States Code (commonly referred to as the "Privacy Act").

TITLE IV-PROTECTING PRIVACY AND ENSURING DUE PROCESS FOR TARGETS OF SURVEILLANCE

SEC. 401. MODIFICATION OF AUTHORITIES ON REVIEW OF MOTIONS TO DISCOVER MATERIALS UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

(a) ELECTRONIC SURVEILLANCE.-Section 106(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(f)) is amended-

(1) in the first sentence, by striking "shall," and inserting "may,"; and

(2) by striking the last sentence and inserting the following new sentence: "In making this determination, the court shall disclose, if otherwise discoverable, to the aggrieved person, the counsel of the aggrieved person, or both, under the procedures and standards provided in the Classified Information Procedures Act (18 U.S.C. App.), portions of the application, order, or other materials relating to the surveillance unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case.".

(b) PHYSICAL SEARCHES.-Section 305(g) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1825(g)) is amended-

(1) in the first sentence, by striking "shall," and inserting "may,"; and

(2) by striking the last sentence and inserting the following new sentence: "In making this determination, the court shall disclose, if otherwise discoverable, to the aggrieved person, the counsel of the aggrieved person, or both, under the procedures and standards provided in the Classified Information Procedures Act (18 U.S.C. App.), portions of the application, order, or other materials relating to the physical search, or may require the Attorney General to provide to the aggrieved person, the counsel of the aggrieved person, or both a summary of such materials unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case.". [Page S6894]

© PEN REGISTERS AND TRAP AND TRACE DEVICES.-Section 405(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(f)) is amended by striking paragraph (2) and inserting the following:

"(2) Unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case, the court shall disclose, if otherwise discoverable, to the aggrieved person, the counsel of the aggrieved person, or both, under the procedures and standards provided in the Classified Information Procedures Act (18 U.S.C. App.), portions of the application, order, or other materials relating to the use of the pen register or trap and trace device, as the case may be, or evidence or information obtained or derived from the use of a pen register or trap and trace device, as the case may be.".

(d) DISCLOSURE OF CERTAIN BUSINESS RECORDS.-(1) Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended-

(A) by redesignating section 502 as section 503; and

(B) by inserting after section 501 the following new section:

"DISCLOSURE OF CERTAIN BUSINESS RECORDS AND ITEMS GOVERNED BY THE CLASSIFIED INFORMATION PROCEDURES ACT

"SEC. 502. Any disclosure of applications, information, or items submitted or acquired pursuant to an order issued under section 501, if such information is otherwise discoverable, shall be conducted under the procedures and standards provided in the Classified Information Procedures Act (18 U.S.C. App.).".

(2) The table of sections for that Act is amended by striking the item relating to section 502 and inserting the following new items:

"Sec. 502. Disclosure of certain business records and items governed by the Classified Information Procedures Act.
"Sec. 503. Congressional oversight.".

SEC. 402. DATA-MINING REPORT.

(a) DEFINITIONS.-In this section:

(1) DATA-MINING.-The term "data-mining" means a query or search or other analysis of 1 or more electronic
databases, where-

(A) at least 1 of the databases was obtained from or remains under the control of a non-Federal entity, or the information was acquired initially by another department or agency of the Federal Government for purposes other than intelligence or law enforcement;

(B) the search does not use a specific individual's personal identifiers to acquire information concerning that individual; and

© a department or agency of the Federal Government is conducting the query or search or other analysis to find a pattern indicating terrorist or other criminal activity.

(2) DATABASE.-The term "database" does not include telephone directories, information publicly available via the Internet or available by any other means to any member of the public without payment of a fee, or databases of judicial and administrative opinions.

(b) REPORTS ON DATA-MINING ACTIVITIES.-

(1) REQUIREMENT FOR REPORT.-The head of each department or agency of the Federal Government that is engaged in any activity to use or develop data-mining technology shall each submit a public report to Congress on all such activities of the department or agency under the jurisdiction of that official.

(2) CONTENT OF REPORT.-A report submitted under paragraph (1) shall include, for each activity to use or develop data-mining technology that is required to be covered by the report, the following information:

(A) A thorough description of the data-mining technology and the data that will be used.

(B) A thorough discussion of the plans for the use of such technology and the target dates for the deployment of the data-mining technology.

© An assessment of the likely efficacy of the data-mining technology in providing accurate and valuable information consistent with the stated plans for the use of the technology.

(D) An assessment of the likely impact of the implementation of the data-mining technology on privacy and civil liberties.

(E) A list and analysis of the laws and regulations that govern the information to be collected, reviewed, gathered, and analyzed with the data-mining technology and a description of any modifications of such laws that will be required to use the information in the manner proposed under such program.

(F) A thorough discussion of the policies, procedures, and guidelines that are to be developed and applied in the use of such technology for data-mining in order to-

(i) protect the privacy and due process rights of individuals; and

(ii) ensure that only accurate information is collected and used.

(G) A thorough discussion of the procedures allowing individuals whose personal information will be used in the data-mining technology to be informed of the use of their personal information and what procedures are in place to allow for individuals to opt out of the technology. If no such procedures are in place, a thorough explanation as to why not.

(H) Any necessary classified information in an annex that shall be available to the Committee on Governmental Affairs, the Committee on the Judiciary, and the Committee on Appropriations of the Senate and the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Appropriations of the House of Representatives.

(3) TIME FOR REPORT.-Each report required under paragraph (1) shall be-

(A) submitted not later than 90 days after the date of enactment of this Act; and

(B) updated once a year and include any new data-mining technologies.

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