Summary of the Homeland Security Enhancement Act of 2003, S. 1906

Prepared by the National Immigration Law Center

Write to your Senators urging them to oppose the Homeland Security Enhancement Act of 2003

§ 101: Reaffirms inherent authority of states to enforce immigration laws

• Declares that state and local law enforcement officers have and always have had the “inherent authority” to enforce immigration laws, including the authority to apprehend, arrest, detain, and transfer (including transportation to across state lines to detention centers) noncitizens to federal custody.

§ 102: Punishes states and local jurisdictions if they do not repeal policies that limit local enforcement of immigration laws

• Establishes that after 2 years from enactment, any state and local jurisdiction that has a statute, policy, or practice that prohibits local officers from enforcing immigration laws or cooperating with federal immigration law enforcement shall not be federally reimbursed for incarcerating noncitizens in a State, local, or municipal prison or jail. Reimbursement funds that would have gone to these localities will be reallocated to jurisdictions that are in compliance with the Act.
  

§ 103: Criminalizes all immigration law violations and increases penalties for illegal entry

• Adds a new section to the Immigration and Nationality Act (INA) to provide that noncitizens who are present in the United States in violation of immigration law shall be guilty of a misdemeanor and be fined and/or imprisoned for up to one year.
• Subjects noncitizens who have been found guilty of any immigration law violation to asset forfeiture.
• Provides an affirmative defense to criminal prosecution or asset forfeiture only for noncitizens who overstayed the time permitted by their visas due to an exceptional or unusual hardship or physical illness that prevented them from leaving by the required date.
• Increases the penalties for illegal entry from six months imprisonment to one year.
• Lowers the maximum period for which voluntary departure can be granted in removal (deportation) proceedings from 120 days to 30 days

§104: Requires insertion of immigration data into the National Crime Information Center (NCIC)

• Authorizes entry of information regarding immigration violations into the NCIC and requires the Department of Homeland Security (DHS), within 180 days of enactment, to provide NCIC information on any and all noncitizens:
  • Against whom a final order of removal has been issued;
  • Who have signed a voluntary departure agreement; and
  • Who have overstayed their visa.
• Requires this data regardless of whether the noncitizen has received notice of a final order of removal, and even for noncitizens who already have been removed.

§105: Imposes onerous reporting requirements on state and local jurisdictions

• Requires all state and local law enforcement agencies to collect the following information on all immigration violators, and to report this information to DHS within 10 days of encountering the violator:
  • Name;
  • Address or place of residence;
  • Physical description;
  • Date, time and location of agent’s encounter with immigration violator and the reason for stop, detention, apprehension or arrest;
  • Driver’s license number and its state of issuance, if applicable;
  • Identification number, any designation number on the document and the issuing entity, if applicable;
  • The license plate number, make and model of any automobile registered or driven by the violator, if applicable;
  • A photo, if readily obtainable; and
  • Fingerprints, if readily obtainable.
• Withholds funds for incarcerating noncitizens in state, local or municipal jails if states and localities do not provide this information.

§106: Requires the federal government to create new detention space

• Instructs DHS to construct or acquire enough new detention space to hold 10,000 more noncitizens.
• Instructs DHS to construct or acquire additional detention space whenever the capacity of any detention facility stays within a one-percent range of full capacity for more than one year.
• Authorizes use of closed military installations for new detention space.
• Authorizes federal appropriations to help create this new detention space.

§107: Requires federal authorities to take into custody noncitizens detained by state and local enforcement agencies

• Adds a new section to the INA to require the federal government to take into federal custody “illegal aliens” whose criminal processes have ended or who have been apprehended, and are in state or local law enforcement custody. If a State or local official requests that such persons be taken into federal custody, the DHS secretary must:
  • Take the noncitizen into federal custody within 48 hours of the conclusion of the state’s charging or dismissal process, or within 48 hours of the individual’s apprehension, whichever is applicable; or
  • Request that the state or local law enforcement agency temporarily incarcerate or transport the individual for transfer to federal custody.
• Requires DHS to designate a federal, state, or local prison or jail, or a private-contracted prison or detention facility within each state as the “central facility” to transfer custody of noncitizens to DHS.
• Mandates that DHS reimburse states and localities for all reasonable expenses incurred in the incarceration and transportation of a noncitizen.
• Requires DHS to ensure that noncitizens are incarcerated in facilities that provide an appropriate level of security, and permits the DHS secretary to establish a “regular circuit and schedule” to ensure the prompt transfer of noncitizens who are held by state or local entities to federal custody.
• Permits the DHS secretary to enter into contracts with state and local law enforcement agencies and detention officials to implement the procedures established in this Section.
• Defines “illegal alien” for purposes of this Section as persons who:
  • Entered the United States without inspection or at any time or place other than as designated by the DHS secretary;
  • Was admitted as a nonimmigrant and, at the time s/he was taken into custody by state or local law enforcement officers, failed to maintain such status or to comply with conditions of that status;
  • Was admitted as an immigrant and has subsequently failed to comply with the requirements of that status; or
  • Failed to depart the United States under a final order of removal or voluntary departure.
• Authorizes appropriations in the amount of $500,000,000 for the detention and removal of noncitizens not lawfully present in the U.S. for fiscal year 2004, and for each subsequent fiscal year.

§108: Requires DHS to provide training and training materials to state and local law enforcement personnel

• Requires the DHS secretary to provide, within 180 days of enactment, to all state and local law enforcement personnel:
  • A training manual for state and local law enforcement agencies to enforce immigration laws. This manual must include information on transporting noncitizens across state lines and identifying fraudulent documents; and
  • An “immigration enforcement pocket guide” for state and local law enforcement agencies that would function as a “quick reference” on the enforcement of immigration law.
• Relieves state and local law enforcement personnel of the obligation to actually carry the training manual or pocket guide with them while on duty.
• Requires DHS be responsible for the costs associated with the creation of the training manual and pocket guide.
• Gives DHS flexibility to provide the training through as many means as possible, including residential training at federal facilities, on-site training at state or local police agencies, on-line training courses by computer, teleconferencing, videotape or DVD.
• Allows the DHS secretary to charge a fee for training, but the fee may not be more than half the costs of actual training.
• Warns that training of state and local officers should not displace or adversely affect training of federal personnel.
• Clarifies that training may not be deemed a prerequisite for enforcement of immigration laws by state or local law enforcement.
• Limits the length of training sessions to no more than 14 days or 80 hours, whichever is longer.

§109: Provides broad immunity to law enforcement personnel and agencies

• Renders state and local law enforcement officers immune, to the same extent as federal law enforcement officers, from personal liability arising out of the enforcement of immigration law, provided that the officer acted within the scope of official duties.
• Provides state and local law enforcement agencies immunity from claims of money damages based on federal, state, or local civil rights law for an incident arising out of enforcement of any immigration law. Establishes an exception to this immunity for any violation of criminal law that agencies may commit in connection with the enforcement of immigration laws.

§110: Permits use of state and local detention facilities for immigration violators pending examination and decision on removal

• Allows noncitizens arrested for immigration violations to be detained while awaiting examination or a decision on removal in a state or local prison, jail, detention center or other comparable facility if it is:
  • The most suitably located facility under the circumstances;
  • An arrangement for use of the facility can be made; and
  • The facility satisfies the standards for housing, care and security of persons held in custody of a U.S. Marshal.

§111: Requires states and localities to participate in the Institutional Removal Program (IRP)

• Mandates that DHS continue to operate the Institutional Removal Program (IRP), which identifies removable noncitizens in federal and state correctional facilities, ensures that they are not released into the community and removes them from the U.S. after the completion of their sentences.
• Directs that the IRP be extended to all 50 states.
• Requires states that receive federal funds for the incarceration of criminal noncitizens to cooperate with the IRP and, as a condition for receiving such funds, expeditiously and systematically identify criminal noncitizens in its prison and jail populations, and promptly convey such information to federal IRP authorities.
• Authorizes state and local law enforcement officers to:
  • Hold a noncitizen for a period up to 14 days after the individual has completed his/her prison term, in order to effectuate the transfer of a removable or unlawfully present noncitizen to federal custody; or
  • Issue a detainer that would require a noncitizen who has served his/her sentence to be detained by the state prison until U.S. Immigration and Customs Enforcement can take the noncitizen into custody.
• Requires that technology such as videoconferencing be used, to the extent possible, in order to make the IRP available in remote locations and requires that mobile access to federal databases and live scan technology be used, to the extent possible, to make such resources available.
• Authorizes increasing appropriations for the IRP.

§201: Limits significantly a state’s authority to issue driver’s licenses to noncitizens

• Establishes that a federal agency may only accept as identification from a noncitizen who is not a lawful permanent resident a state driver’s license that expires on the date on which the noncitizen’s authorization to remain in the U.S. expires.
• Denies highway safety funds to states that issue driver’s licenses to noncitizens who are not in lawful status.
• §202: Limits significantly the documents that the federal government may accept as identification when providing federal public benefits or services
• Establishes that the only identification documents a federal agency, commission, or entity may accept, recognize, or rely upon when providing a federal public benefit or services in the U.S. are:
  • Documents issued by a U.S. or state authority which are subject to verification by a U.S. federal law enforcement, intelligence, or homeland security agency; or
  • Passports in the possession of individuals lawfully in the U.S. who are from countries whose nationals are not required to obtain a visa before visiting the U.S. (i.e., nonimmigrant visitors from “visa waiver” countries).
• Denies immunity to any federal government official, employee, or contractor or agent who takes action inconsistent with this Section, unless such immunity is conferred by the Constitution and cannot be waived.

Write to your Senators urging them to oppose the Homeland Security Enhancement Act of 2003

For more information contact Anita Sinha at the National Immigration Law Center

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