Order Code RL32754
CRS Report for Congress
Received through the CRS Web
Immigration: Analysis of the
Major Provisions of H.R. 418,
the REAL ID Act of 2005
Updated February 16, 2005
Michael John Garcia, Margaret Mikyung Lee,
Todd Tatelman, and Larry M. Eig
Legislative Attorneys
American Law Division
Congressional Research Service ˜ The Library of Congress

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Immigration: Analysis of the Major Provisions of H.R.
418, the REAL ID Act of 2005
Summary
During the 108th Congress, a number of proposals related to immigration and
identification-document security were introduced, some of which were considered
in the context of implementing recommendations made by the National Commission
on Terrorist Attacks Upon the United States (also known as the 9/11 Commission)
and enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of
2004 (P.L. 108-458). At the time that the Intelligence Reform and Terrorism
Prevention Act was adopted, some congressional leaders reportedly agreed to revisit
certain immigration and document-security issues in the 109th Congress that had been
dropped from the final version of the act.
H.R. 418, the REAL ID Act of 2005, was introduced by Representative James
Sensenbrenner on January 26, 2005, and passed the House, as amended, on February
10, 2005 on a vote of 261-161. House-passed H.R. 418 contains a number of
provisions related to immigration reform and document security that were considered
during congressional deliberations on the Intelligence Reform and Terrorism
Prevention Act, but which were ultimately not included in the act’s final version.
House-passed H.R. 418 also includes some provisions that were not considered
during final deliberations over the Intelligence Reform and Terrorism Prevention Act.
This report analyzes the major provisions of House-passed H.R. 418, which
would, inter alia, (1) modify the eligibility criteria for asylum and withholding of
removal; (2) limit judicial review of certain immigration decisions; (3) institute new
standards and practices for bonds assuring the appearance of aliens for removal; (4)
provide additional waiver authority over laws that might impede the expeditious
construction of barriers and roads along land borders, including a 14-mile wide fence
near San Diego; (5) expand the scope of terror-related activity making an alien
inadmissible or deportable, as well as ineligible for certain forms of relief from
removal; (6) require states to meet certain minimum security standards in order for
the drivers’ licenses and personal identification cards they issue to be accepted for
federal purposes; (7) require the Secretary of Homeland Security to enter into the
appropriate aviation security screening database the appropriate background
information of any person convicted of using a false driver’s license for the purpose
of boarding an airplane; and (8) require the Department of Homeland Security to
study and plan ways to improve U.S. security and improve inter-agency
communications and information sharing, as well as establish a ground surveillance
pilot program.

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Contents
I. Preventing Terrorists from Obtaining Asylum or Relief from Removal . . . . . 2
Standards for Granting Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . . 4
Standards for Granting Withholding of Removal . . . . . . . . . . . . . . . . . . . . . 7
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Changes Proposed by House-Passed H.R. 418 . . . . . . . . . . . . . . . . . . . 8
Standards for Granting Other Forms of Removal Relief . . . . . . . . . . . . . . . . 9
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Changes Proposed by House-Passed H.R. 418 . . . . . . . . . . . . . . . . . . 10
Standards of Judicial Review for Certain Determinations . . . . . . . . . . . . . . 11
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 11
Judicial Review of Denials of Discretionary Relief . . . . . . . . . . . . . . . . . . . 12
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 12
Removal of Caps on Adjustment of Status for Asylees . . . . . . . . . . . . . . . . 13
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Changes Proposed by House-Passed H.R. 418 . . . . . . . . . . . . . . . . . . 13
Repeal of the Study and Report on Terrorists and Asylum . . . . . . . . . . . . . 13
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 14
II. Waiver of Laws to Facilitate Barriers at Border . . . . . . . . . . . . . . . . . . . . . . 14
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 15
III. Judicial Review of Orders of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 16
IV. Release of Aliens in Removal Proceedings on Bond . . . . . . . . . . . . . . . . . . 17
V. Inadmissibility and Deportability Due to Terrorist and
Terrorist-Related Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Definition of “Engage in Terrorist Activity” . . . . . . . . . . . . . . . . . . . . . . . 20
Current Law Defining “Engage in Terrorist Activity” . . . . . . . . . . . . . 21
Changes Proposed by House-passed H.R. 418 to the Definition of
“Engage in Terrorist Activity” . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Definition of “Terrorist Organization”
. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Current Law Defining “Terrorist Organization” . . . . . . . . . . . . . . . . . 24
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 24
Terror-Related Grounds for Inadmissibility of Aliens . . . . . . . . . . . . . . . . . 26
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Changes to Terror-Related Grounds for Inadmissibility Proposed
by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Terror-Related Grounds for Deportability of Aliens . . . . . . . . . . . . . . . . . . 30

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Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 30
Consequences of Terror-Related Activities on Eligibility for Relief
from Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Withholding of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
VI. Improved Security for Drivers’ Licenses and Personal Identification
Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Changes Proposed by House-passed H.R. 418 . . . . . . . . . . . . . . . . . . 40
Vulnerability and Threat Assessment Relating to Border
Infrastructure Weaknesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Establishment of a Ground Surveillance Pilot Program . . . . . . . . . . . . . . . 44
Enhancement of Border Communications Integration and Information
Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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Immigration: Analysis of the Major
Provisions of H.R. 418, the
REAL ID Act of 2005
The 109th Congress is considering several issues carried over from the 108th
Congress related to immigration enforcement and identification-document security.
During the 108th Congress, a number of proposals were made to strengthen
identification-document security and make more stringent requirements for alien
admissibility and continuing presence within the United States.1 Certain immigration
and identification-document security proposals were considered in the context of
implementing recommendations of the National Commission on Terrorist Attacks
Upon the United States (also known as the 9/11 Commission) to improve homeland
security, and some of these were enacted pursuant to the Intelligence Reform and
Terrorism Prevention Act of 2004.2 However, other proposals did not appear in the
final legislation, certain document-security provisions being notable among them.
At the time that the Intelligence Reform and Terrorism Prevention Act was enacted,
some congressional leaders reportedly agreed to revisit certain immigration and
document-security issues in the 109th Congress that had been dropped from the final
version of the act.3
H.R. 418, the REAL ID Act of 2005, was introduced by Representative James
Sensenbrenner on January 26, 2005, and passed the House, as amended, on February
10, 2005, on a vote of 261-161. House-passed H.R. 418 contains both a number of
provisions related to immigration reform and document security that were considered
during congressional deliberations on the Intelligence Reform and Terrorism
Prevention Act, but which were ultimately not included in the act’s final version, and
some new proposals. House-passed H.R. 418 also includes some provisions that
were not considered during final deliberations over the Intelligence Reform and
Terrorism Prevention Act.
This report analyzes the major provisions of House-passed H.R. 418, the REAL
ID Act of 2005. It describes relevant current law relating to immigration and
document-security matters, how House-passed H.R. 418 would alter current law if
enacted, and the degree to which the bill duplicates existing law.
1 See generally CRS Report RL32169, Immigration Legislation and Issues in the 108th
Congress, Andorra Bruno, Coordinator.
2 P.L. 108-458, 118 Stat. 3638 (2004). For further background, see CRS Report RL32616,
9/11 Commission: Legislative Action Concerning U.S. Immigration Law and Policy in the
108th Congress, by Michael John Garcia and Ruth Ellen Wasem.
3 See Mary Curtius, The Nation; GOP Congressman Renews Push for Immigration Curbs,
L.A. TIMES, Jan. 27, 2005, at A18.

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CRS-2
I. Preventing Terrorists from Obtaining Asylum or
Relief from Removal4
The 9/11 Commission Report5 documented instances where terrorists had
exploited the availability of humanitarian relief under immigration law.6 Although
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)7 and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)8 amended
asylum procedures to reduce fraudulent claims and limited judicial review of removal
orders, provisions in House-passed H.R. 418 would again amend the Immigration
and Nationality Act (INA)9 for the purpose of further diminishing the prospect of
terrorists using the immigration system to their advantage.
Standards for Granting Asylum
Current Law. Section 208(b) of the INA10 provides that the Attorney General
may grant asylum to an alien whom he determines is a refugee as defined in §
101(a)(42)(A) of the INA. That section defines a refugee as a person who is
persecuted or who has a well-founded fear of persecution because of race, religion,
nationality, membership in a particular social group, or political opinion.11 An alien
who is physically present or arrives in the United States, regardless of the alien’s
immigration status, may apply for asylum. Although the burden of proof is not
currently explicitly described in the INA, regulations at 8 C.F.R. § 208.13(a) and (b)
place the burden of proof on the asylum applicant, as did previous statutory
provisions.12 Also, case law places the burden of proof on the asylum applicant.13
The grant of asylum is discretionary and even if an applicant meets the burden of
proof for asylum eligibility, asylum may be denied on discretionary grounds.
There are no explicit standards in the INA on determining the credibility of an
asylum applicant and the necessity for corroborating evidence of applicant testimony.
4 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
5 FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED
STATES, July 2004.
6 Id. at 72. Ramzi Yousef, one of the terrorists involved in the 1993 World Trade Center
bombing, entered the United States on a political asylum claim.
7 P.L. 104-132, 110 Stat. 1214 (1996).
8 Division C of P.L. 104-208, 110 Stat. 3009-546 (1996).
9 8 U.S.C. §§ 1101 et seq.
10 8 U.S.C. § 1158(b).
11 8 U.S.C. § 1101(A)(42)(A).
12 See INA § 203(a)(7) between P.L. 89-236, 79 Stat. 911 (1965) and Pub .L. No. 96-212,
94 Stat. 109 (1980), [current version at 8 U.S.C. § 1153(a)(7)] and Shubash v. District
Director, 450 F.2d 345 (9th Cir. 1971).
13 C. Gordon, S. Mailman, & S. Yale-Loehrer, IMMIGRATION LAW & PROCEDURE, § 34.02
(2004) (hereinafter IMMIGRATION LAW & PROCEDURE).

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CRS-3
In the absence of explicit statutory guidelines, standards for determining credibility
and sufficiency of evidence have evolved through the case law of the Board of
Immigration Appeals (BIA) and federal courts. However, these standards are not
necessarily consistent across federal appellate courts, which may yield different
results in otherwise apparently similar cases.14 Generally, an asylum adjudicator may
base an adverse credibility finding on factors such as the demeanor of the applicant
or witness, inconsistencies both within a given testimony and between a given
testimony and other testimony and evidence (which may include country conditions,
news accounts, etc.), and a lack of detail or specificity in testimony. The U.S. Court
of Appeals for the Ninth Circuit (Ninth Circuit) has held that an adjudicator must
make explicit the reasons for an adverse credibility finding or the court will accept
the applicant’s testimony as credible.15
An adverse credibility finding may be based in part but not solely on an
applicant’s failure to provide corroboration. The Ninth Circuit has held that where
there is reason for an adjudicator to question the applicant’s credibility and the
applicant fails to provide easily obtainable corroborating evidence with no
explanation for such failure, an adverse credibility finding will withstand judicial
review.16 With regard to sufficiency of the evidence, the BIA and the federal courts
agree that credible testimony alone may suffice to sustain the applicant’s burden of
proof in some cases, but disagree on when credible testimony alone meets the burden
and when corroboration is needed. The BIA standard is that where it would be
reasonable to expect corroboration, it must be provided or an explanation for failure
to provide it must be given.17 However, some circuits have criticized the BIA for
failing to articulate what corroboration it expected in particular cases and why. The
Ninth Circuit has adopted a standard that an applicant’s credible testimony alone
always suffices to sustain the burden of proof of eligibility where it is unrefuted,
direct and specific.18 One authority argues that the BIA’s approach is contrary to
international standards under which an asylum applicant should be given the benefit
of the doubt, given the difficulties in obtaining corroborating evidence, although the
applicant should try to provide any available corroborating evidence.19 On the other
hand, the U.S. Court of Appeals for the Second Circuit has asserted that the BIA
standards are consistent with international standards because an applicant is supposed
14 See id. § 34.02[9] for a discussion of the case law concerning evidentiary standards.
15 “It is well established in this circuit that the BIA may not require independent
corroborative evidence from an asylum applicant who testifies credibly in support of his
application. . . . It is also well settled that we must accept an applicant’s testimony as true
in the absence of an explicit adverse credibility finding.” Kataria v. INS, 232 F.3d 1107,
1113-14 (9th Cir. 2000) (citations omitted). “Even under the substantial evidence standard,
an adverse credibility finding must be based on ‘specific cogent reasons,’ which are
substantial and ‘bear a legitimate nexus to the finding.’” Cordon-Garcia v. INS, 204 F.3d
985, 993 (9th Cir. 2000).
16 Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000).
17 In re S-M-J-, Applicant, 21 I. & N. Dec. 722, 1997 WL 80984 (B.I.A. 1997).
18 Ladha v. I.N.S., 215 F.3d 889 (9th Cir. 2000).
19 See IMMIGRATION LAW & PROCEDURE § 34.02[9][c][ii][B], notes 288-292 and
accompanying text.

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CRS-4
to try to provide corroboration for his or her claim or satisfactorily explain its
absence.20
Currently, an alien who is inadmissible on certain terrorist grounds or who is
removable for engaging or having engaged in terrorist activities is not eligible for
asylum. Not foreclosed from relief is a person who is inadmissible as a member of
a terrorist organization, the spouse or child of a person inadmissible on terrorist
grounds, or a person who is a representative of a terrorist organization where the
Attorney General has determined that there are not reasonable grounds for regarding
the representative as a danger to the security of the United States.21 As discussed
below, however, changes elsewhere in House-passed H.R. 418 would much more
narrowly restrict the availability of asylum to those with terrorist ties.
Changes Proposed by House-passed H.R. 418. Subsection 101(a) of
House-passed H.R. 418 would amend § 208(b)(1) of the INA22 by clarifying that the
Secretary of Homeland Security and the Attorney General both have authority to
grant asylum and by strengthening and codifying the standards for establishing a
well-founded fear of persecution. These changes address the asylum process
generally. Proposed changes that could specifically affect the eligibility for asylum
of aliens associated with terrorist organizations are discussed elsewhere in this report.
Authority of Secretary of Homeland Security. Although the Homeland
Security Act of 200223 and Reorganization Plan under that act24 provided generally
for the transfer of the functions of the defunct Immigration and Naturalization
Service (INS) to the Department of Homeland Security, most provisions of the INA
still refer to the Attorney General and/or Commissioner of the INS. Both the
Secretary of Homeland Security and the Attorney General may now exercise
authority over asylum depending on the context in which asylum issues arise, and §
101(a)(1) and (2) of House-passed H.R. 418 would accordingly amend § 208(b)(1)
of the INA to insert references to both the Attorney General and the Secretary of
Homeland Security. However, this would only address references for that particular
subsection and would not amend the rest of § 208, which would continue to refer
only to the Attorney General. It is not clear whether this omission is intended to limit
the authority of the Secretary with respect to changes in asylum status or procedures
for considering asylum applications.
20 “[I]nternational standards do not conflict with the BIA’s expectation of corroborating
evidence in certain cases. The Handbook of the United Nations High Commissioner for
Refugees notes that applicants should ‘make an effort to support [their] statements by any
available evidence and give a satisfactory explanation for any lack of evidence.’” Diallo v.
INS, 232 F.3d 279, 286 (2nd Cir. 2000).
21 While such a person may have applied for asylum, CRS has not found an instance in
which such a person was granted asylum.
22 8 U.S.C. § 1158(b)(1).
23 P.L. 107-296, §§ 1102, 1502, 116 Stat. 2135, 2273, 2308, as amended by P.L. 108-7, Div.
L, § 105(a), 117 Stat. 11, 531 (2003).
24 At [http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf], last
visited Jan. 13, 2005.

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CRS-5
Burden of Proof and Central Reason. Subsection 101(a)(3) of House-
passed H.R. 418 would codify the existing regulatory and case law standard that the
burden of proof is on the asylum applicant to establish eligibility as a refugee.
However, the subsection appears to create a new standard requiring that the
applicant must establish that a central reason for persecution was or will be race,
religion, nationality, membership in a particular social group, or political opinion.
Neither § 208 nor § 101(a)(42)(A) of the INA nor the relevant regulation currently
refers to or defines the concept of a “central reason,” which appears to be a
modification of established refugee/asylum laws.
Case law concerning asylum has addressed the concept of “mixed motives” for
the persecution of an alien. Where there is more than one motive for persecution, a
person may be granted asylum as long as one of the motives is a statutory ground of
persecution.25 For example, a person may be economically persecuted, e.g., he may
receive an extortion demand. If the extortion is motivated by both a desire to obtain
money and by a desire to punish the person for a political opinion, or being a member
of a race, religion, nationality, or particular social group, then that person may be
granted asylum. However, a person may be denied asylum where economic
persecution is motivated solely by the desire to obtain money rather than for the
motives enumerated in the statute. The statutory establishment of a central reason
25 IMMIGRATION LAW AND PROCEDURE § 33.04 (2004), comparing, e.g., Fadul v. INS, No.
99-2029, 2000 U.S. App. LEXIS 4952 (7th Cir. Mar. 20, 2000) (death threats by the New
People’s Army motivated by extortion efforts, not political opinion) with Chen v. Ashcroft,
289 F.3d 1113, 1116 (9th Cir. 2002) (vacated on grounds unrelated to the motive analysis,
314 F.3d 995 (9th Cir. 2002)) (“It is not necessary that persecution be solely on account of
one of the forbidden grounds for an asylum applicant to secure asylum. It is enough that a
principal reason for the persecution be on account of a statutory ground”). See also Singh
v. Ashcroft, 2004 U.S. App. LEXIS 18925, at *5 (9th Cir., Sept. 3, 2004); Girma v. INS, 283
F.3d 664, 668 (5th Cir. 2002) (“[under a mixed motive analysis] the predominant motive for
the abuse is not determinative . . . an applicant for asylum must present evidence sufficient
for one to reasonably believe that the harm suffered was motivated in meaningful part by
a protected ground”); Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir. 2001); Borja v. INS,
175 F.3d 732, 734-36 (9th Cir. 1999) (en banc) (“ . . . ‘the plain meaning of the phrase
‘persecution on account of the victim’s political opinion,’ does not mean persecution solely
on account of the victim’s political opinion. That is, the conclusion that a cause of
persecution is economic does not necessarily imply that there cannot exist other causes of
the persecution.’ As the United Nations’ Handbook on Procedures and Criteria for
Determining Refugee Status says, ‘What appears at first sight to be primarily an economic
motive for departure may in reality also involve a political element, and it may be the
political opinions of the individual that expose him to serious consequences, rather than his
objections to the economic measures themselves.’ (quoting U.N. Handbook at §§ 62-64).
To quote the Board’s decision in this case, ‘An applicant for asylum need not show
conclusively why persecution occurred in the past or is likely to occur in the future.
However, the applicant must produce evidence from which it is reasonable to believe that
the harm was motivated, at least in part, by an actual or implied protected ground.’” (other
cites omitted, emphasis added)); Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995)
(“Persecutory conduct may have more than one motive, and so long as one motive is one of
the statutory grounds, the requirements have been satisfied.”). See also CRS Report
RL32621, U.S. Immigration Policy on Asylum Seekers, by Ruth Ellen Wasem, at 8, 22.

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CRS-6
standard appears to be a modification to the mixed motives standard in some case
precedents.
Corroboration and Credibility. Subsection 101(a)(3) of House-passed H.R.
418 would attempt to bring some clarity and consistency to evidentiary
determinations by codifying standards for sustaining the burden of proof, determining
credibility of applicant testimony, and determining when corroborating evidence may
be required.
Under House-passed H.R. 418, the testimony of the applicant may suffice to
sustain the applicant’s burden without corroboration, but only if the adjudicator
determines that it is credible, persuasive and refers to specific facts demonstrating
refugee status. The adjudicator is entitled to consider credible testimony along with
other evidence. If the adjudicator determines in his/her discretion that the applicant
should provide corroborating evidence for otherwise credible testimony, such
corroborating evidence must be provided unless the applicant does not have it and
cannot reasonably obtain it without leaving the United States. The inability to obtain
corroborating evidence does not relieve the applicant from sustaining the burden of
proof. The adjudicator is to consider all relevant factors and may base an applicant
or witness credibility determination on, among other factors, demeanor, candor,
responsiveness, inherent plausibility of the account, consistency between the written
and oral statements (regardless of when they were made and whether they were under
oath), internal consistency of a statement, consistency of statements with other
evidence or record (including the Department of State reports on country conditions),
and any inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy or falsehood goes to the heart of an applicant’s claim.
There is no presumption of credibility.
Given the flexibility afforded the adjudicator, it is not clear that House-passed
H.R. 418 would represent either a significant departure from current case law
standards for credibility and corroboration or a clear resolution of inconsistencies
among case precedents in different federal appellate courts and also the BIA. The
proposed new § 208(b)(1)(B)(ii) of the INA appears to permit an adjudicator to make
an adverse credibility finding based on the applicant’s failure to provide
corroborating evidence for otherwise credible testimony, unless the applicant does
not have it or cannot obtain it without leaving the United States. This provision
appears to be intended primarily to resolve the difference between the BIA and the
Ninth Circuit with regard to credibility and sufficiency of evidence by adopting the
BIA position with some modification (specifying what excuses failure to provide
corroboration). On the other hand, the proposed new § 208(b)(1)(B)(iii) of the INA
in general appears to be a codification of, but not a significant change from, current
case law which permits an asylum adjudicator to consider factors such as demeanor,
inconsistencies, and the like in making credibility determinations, as long as they are
not actually speculation or conjecture, rather than factual observation. However, the
clause providing that an adjudicator may consider an inconsistency, inaccuracy or
falsehood regardless of whether it goes to the crux of an asylum claim appears
intended to supersede Ninth Circuit precedent that inconsistencies, inaccuracies and
falsehoods that do not go to the heart of a claim will not support an adverse

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CRS-7
credibility finding.26 The clause stating that there is no presumption of credibility
appears intended to supersede Ninth Circuit precedent that presumes credibility
where neither the immigration judge nor the BIA has made an explicit adverse
credibility finding.27
Effective Dates. Subsection 101(g)(1) of House-passed H.R. 418 would
provide that the references to the authority of the Secretary of Homeland Security
would take effect as if enacted on March 1, 2003, which was the official date of
transfer of immigration enforcement functions from the INS to the Department of
Homeland Security under the Reorganization Plan. Subsection 101(g)(2) would
provide that the asylum standards established in § 101(a)(3) of House-passed H.R.
418 shall take effect on the date of enactment and apply to applications for asylum
made on or after such date, therefore, the standards would not apply by statute to
asylum applications filed before the date of enactment, although such standards in
existing case law would apply.
Standards for Granting Withholding of Removal
Current Law. Subsection 241(b)(3) of the INA places restrictions on removal
to a country where an alien’s life or freedom would be threatened because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.28 Although there are similarities between asylum and withholding of
removal, there are also significant differences. Asylum is a discretionary form of
relief, for which the standard is a “well-founded fear of persecution.” Withholding
of removal is mandatory relief from removal for those who can satisfy the higher
standard of a “clear probability of persecution,” also expressed as “more likely than
not” that one would be persecuted.29 A person who has been granted asylum has
been admitted into the United States, although the status is not a right to reside
permanently in the United States. A person who is granted withholding has not been
granted legal entry into the United States and may be more readily removed to his
country when there is no longer any threat to his life or freedom. Withholding of
removal is only specific to a particular country and therefore does not preclude
26 See, e.g., Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003) (“Minor
inconsistencies in the record that do not relate to the basis of an applicant’s alleged fear of
persecution, go to the heart of the asylum claim, or reveal anything about an asylum
applicant’s fear for his safety are insufficient to support an adverse credibility finding”).
This clause was not in H.R. 418 as introduced.
27 See Canjura-Flores v. INS, 784 F.2d 885, 888-89 (9th Cir. 1985) ( “We will continue to
remand to the Board for credibility findings when we reverse a decision in which the Board
has avoided the credibility issue by holding that a petitioner has failed to establish either a
well-founded fear of persecution or a clear probability of persecution even if his testimony
is assumed to be credible [cites omitted], or when the basis of the Board’s decision cannot
be discerned from the record [cites omitted]. When the decisions of the Immigration Judge
and the Board are silent on the question of credibility, however, we will presume that they
found the petitioner credible”). This clause was not in H.R. 418 as introduced.
28 8 U.S.C. § 1231(b)(3).
29 Compare INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) with INS v. Stevic, 467 U.S. 407
(1984).

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CRS-8
removal to another country under INA § 241(b)(1)(C). An alien granted withholding
of removal may not adjust to the status of a lawful permanent resident and the alien’s
family members are not eligible to come to the United States via the alien’s status in
the United States. In contrast, within numerical limits for asylee adjustments,30 an
alien granted asylum may adjust status under § 209(b) of the INA31 after being
present in the United States for one year after the grant of asylum if the alien still
meets the definition of refugee, is not firmly resettled in any other country and is
otherwise admissible as an immigrant (with exemptions from certain grounds of
inadmissibility). Additionally, under § 208(b)(3) of the INA the spouse and children
of an alien granted asylum, if not otherwise eligible for asylum, may be granted
asylum themselves if accompanying or following to join the alien.32 Aside from the
higher standard of proof, withholding of removal involves similar consideration of
credibility and corroboration factors33 and some of the same issues regarding Ninth
Circuit jurisprudence.34
INA § 241(b)(3)(A) enumerates certain classes of aliens who are ineligible for
withholding of removal, including aliens reasonably believed by the Attorney
General to be a danger to the security of the United States. The statute further states
that an alien who is removable for engaging in terrorist activities under §
237(a)(4)(B) of the INA35 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.
Changes Proposed by House-Passed H.R. 418. Subsection 101(b) of
House-passed H.R. 418 would amend § 241(b)(3) of the INA36 by applying to and
codifying for withholding of removal the same standards for sustaining the applicable
burden of proof37 and for assessing credibility that would be used for asylum
adjudications under § 208(b)(1)(B)(ii) and (iii) as added by House-passed H.R. 418
§ 101(a)(3). The discussion above concerning specific changes with regard to central
reason, credibility determinations, and corroborating evidence applies to this change
as well. Proposed changes that could specifically affect the eligibility of aliens
associated with terrorist organizations are discussed elsewhere in this report.
30 Section 101(f) of House-passed H.R. 418 would eliminate the cap for adjustment of status
for asylees, which is currently set at 10,000 persons each fiscal year.
31 8 U.S.C. § 1159(b).
32 8 U.S.C. § 1158(b)(3).
33 See IMMIGRATION LAW & PROCEDURE § 34.02[11][c].
34 The Ninth Circuit has held that with regard to withholding of deportation/removal,
administrative adjudicators improperly denied the application for lack of corroboration
where the applicant gave credible testimony. E.g., Mendoza Manimbao v. Ashcroft, 329
F.3d 655 (9th Cir. 2003); Canjura-Flores v. INS, 784 F.2d 885 (9th Cir. 1985).
35 8 U.S.C. § 1227(a)(4)(B).
36 8 U.S.C. § 1231(b)(3).
37 Again, the standard is “clear probability of persecution” in withholding cases.

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CRS-9
House-passed H.R. 418 § 101(g)(2) would provide that the withholding of
removal standards established in § 101(b) shall take effect on the date of enactment
and apply to withholding applications made on or after such date; therefore, the
standards would not apply by statute to applications filed before the date of
enactment. Only those standards in existing law would apply.
Standards for Granting Other Forms of Removal Relief
Current Law. In addition to asylum and withholding of removal, there are
other forms of relief from removal, including cancellation of removal, voluntary
departure, withholding or deferral of removal under the United Nations Convention
Against Torture [Torture Convention],38 and suspension of deportation (for those
eligible for such pre-IIRIRA relief). In addition, temporary protected status and any
applicable waivers of inadmissibility or deportability might be construed as relief
from removal. Different eligibility conditions apply to each of these forms of relief
from removal. Cancellation of removal itself has different conditions applicable to
permanent residents, nonpermanent residents, battered spouses and children, and
beneficiaries of the Nicaraguan Adjustment and Central American Relief Act
(NACARA).39 The evidentiary standards are generally not specified in current
statutes. However, section 240A(b)(2)(D) of the INA (8 U.S.C. § 1229b(b)(2)(D))
does provide that the Attorney General shall consider any credible evidence relevant
to an application for cancellation of removal for a battered spouse or child and that
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.
Various regulations address burden of proof and evidentiary standards for some
forms of removal relief. Generally, the applicant for removal relief shall have the
burden of establishing that he or she is eligible for any requested benefit or privilege
and that it should be granted in the exercise of discretion.40 If the evidence indicates
that one or more of the grounds for mandatory denial of the application for relief may
apply, the alien shall have the burden of proving by a preponderance of the evidence
that such grounds do not apply. The burden of proof is on the applicant for
withholding or deferral of removal under the Torture Convention to establish that it
is more likely than not that he or she would be tortured if removed to the proposed
country of removal.41 The testimony of the applicant, if credible, may be sufficient
to sustain the burden of proof without corroboration. Evidence to be considered
includes but is not limited to certain factors enumerated in the regulations. The
burden of proof is on the applicant for removal relief under NACARA to establish
38 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc.
A/39/51 (1984). For a discussion of the Convention, see CRS Report RL32276, The U.N.
Convention Against Torture: Overview of U.S. Implementation Policy Concerning the
Removal of Aliens, by Michael John Garcia.
39 P.L. 105-100, § 203, 111 Stat. 2160 (Nov. 19, 1997), as amended.
40 8 C.F.R. § 1240.8(d).
41 8 C.F.R. §§ 208.16(c), 1208.16(c).

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CRS-10
by a preponderance of the evidence that he or she is eligible for such relief.42 In
certain cases a presumption of extreme hardship applies, and in such cases, the
burden of proof shall be on the government to establish that it is more likely than not
that neither the applicant nor a qualified relative would suffer extreme hardship if the
applicant were removed from the United States. In those cases where a presumption
of extreme hardship applies, the burden of proof shall be on the Service to establish
that it is more likely than not that neither the applicant nor a qualified relative would
suffer extreme hardship if the applicant were deported or removed from the United
States. For temporary protected status, the applicant must provide supporting
documentary evidence of eligibility apart from his or her own statements to meet his
or her burden of proof.43 The applicant must submit documentary evidence required
in the instructions and may be required to submit evidence of unsuccessful attempts
to obtain required documents or alternative evidence.
The BIA has ruled that the general standards developed in case law for
suspension of deportation, the pre-IIRAIRA form of relief analogous to cancellation
of removal, should be applied to the newer form of relief.44 Under suspension of
deportation, the applicant had the burden of establishing his or her eligibility, and
documents and other evidence presented during the proceedings would be considered
in deciding his or her eligibility for relief.45
Changes Proposed by House-Passed H.R. 418. H.R. 418 as introduced
did not establish standards for removal relief other than asylum and withholding of
removal. House-passed H.R. 418 1§ 101(c) would amend § 240(c) of the INA (8
U.S.C. § 1229a(c)) concerning the burden of proof in removal proceedings by
establishing standards for the burden of proof and credibility determinations for
removal relief in general that are similar to those specifically for asylum and
withholding of removal. An alien would have the burden of proof to establish
eligibility for relief and that he or she merits a favorable exercise of discretion for any
discretionary relief. The alien must comply with requirements to submit supporting
documents or other information for relief as provided by law, regulation, or
instructions on the relief application form. The immigration judge will determine
whether or not the testimony of an applicant or witness is credible, persuasive, and
refers to specific facts demonstrating satisfaction of the burden of proof. The
immigration judge shall weigh credible testimony along with other evidence of
record. The standards established by § 101(a) and (b) for asylum and withholding
of removal would provide that the adjudicator may weigh credible testimony with
other evidence of record since credible testimony alone may satisfy the burden of
proof. This difference appears to result from the special circumstances for asylum
and withholding of removal, where persecution and flight from persecution may
make corroboration difficult or impossible, so that credible testimony may be the
only evidence obtainable, and where the removal may endanger the safety of the
alien. Other forms of relief may not entail such special consideration. If the
42 8 C.F.R. §§ 240.64, 1240.64.
43 8 C.F.R. §§ 244.9, 1244.9
44 See IMMIGRATION LAW AND PROCEDURE § 64.04[3][b][v].
45 See id. § 74.07[7][a].

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CRS-11
immigration judge determines in his/her discretion that the applicant should provide
corroborating evidence for otherwise credible testimony, such corroborating evidence
must be provided unless the applicant does not have it and cannot reasonably obtain
it without leaving the United States. The inability to obtain corroborating evidence
does not relieve the applicant from sustaining the burden of proof.
The immigration judge should consider all relevant factors and may base an
applicant or witness credibility determination on, among other factors, demeanor,
candor, responsiveness, inherent plausibility of the account, consistency between the
written and oral statements (regardless of when they were made and whether they
were under oath), internal consistency of a statement, consistency of statements with
other evidence or record (including the Department of State reports on country
conditions), and any inaccuracies or falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy or falsehood goes to the heart of an
applicant’s claim. There is no presumption of credibility.
Subsection 101(g)(2) would provide that the standards established in § 101(c)
of House-passed H.R. 418 shall take effect on the date of enactment and apply to
applications for removal relief made on or after such date, therefore, the standards
would not apply by statute to applications filed before the date of enactment.
Standards of Judicial Review for Certain Determinations
Current Law. Section 242(b)(4) of the INA limits the scope and standard for
judicial review of removal orders.46 A court of appeals can only base its decision on
the administrative record on which the removal order was based; administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary; a decision that an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to law; and the Attorney
General’s discretionary judgment whether to grant asylum is to be conclusive unless
manifestly contrary to the law and an abuse of discretion. Case law also reflects
these standards. The standard of judicial review for discretionary denial of an asylum
claim is whether there has been an abuse of discretion. The standard of review for
a denial of asylum based on a finding of fact (no persecution or well-founded fear of
persecution) is whether the decision is supported by substantial evidence.47 The
standard of review for a denial of withholding of removal is whether the decision is
supported by substantial evidence, since the relief is not discretionary.48 For
withholding of removal, a finding of fact that the applicant’s testimony is not credible
is also subject to the substantial evidence standard.
Changes Proposed by House-passed H.R. 418. House-passed H.R. 418
§ 101(d) would amend § 242(b)(4) of the INA49 by establishing standards of judicial
review for reversing certain evidentiary determinations of the adjudicator for asylum,
46 8 U.S.C. § 1252(b)(4).
47 IMMIGRATION LAW & PROCEDURE § 34.02[12][g].
48 Id. § 33.06[8].
49 8 U.S.C. § 1252(b)(4).

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CRS-12
withholding of removal or other relief from removal. It would limit judicial review
by barring a court from reversing the decision of the adjudicator about the availability
of corroborating evidence, unless it finds that a reasonable adjudicator is compelled
to conclude that such evidence is unavailable.
It is unclear whether this amendment would significantly change existing law,
since the current statutory language already states that administrative findings of fact
— which apparently would include a conclusion about the availability of evidence
— would not be reversed unless a reasonable adjudicator would be compelled to find
otherwise. It appears that this provision, together with House-passed H.R. 418
provisions establishing standards for determining credibility and use of corroborating
evidence, is intended to ensure uniformity of standards for judicial review of findings
of fact on availability of corroboration, although even the Ninth Circuit has held that
administrative findings of fact would not be reversed unless a reasonable adjudicator
would be compelled to find otherwise under § 242(b)(4) of the INA.50
House-passed H.R. 418 § 101(g)(3) would provide that the judicial review
standards established in § 101(c) shall take effect on the date of enactment and apply
to all cases in which the final administrative removal order was issued before, on, or
after such date.
Judicial Review of Denials of Discretionary Relief
Current Law. Section 242(a)(2)(B) of the INA limits judicial review of
denials of discretionary relief.51 Notwithstanding any other laws, it bars any court
from jurisdiction to review any judgment on relief under various inadmissibility
waivers, cancellation of removal, voluntary departure and adjustment of status, or
any other discretionary decision or action of the Attorney General regarding title II
of the INA (immigration laws for the admission and removal of aliens in the United
States), other than the granting of asylum.
Changes Proposed by House-passed H.R. 418. House-passed H.R. 418
§ 101(e)(1) would amend 242(a)(2)(B)(ii)of the INA52 by adding a reference to the
Secretary of Homeland Security, which would help clarify the text and make it
consistent with the aims of the Reorganization Plan for the Department of Homeland
Security.
Subsection 101(e)(2) would amend § 242(a)(2)(B) of the INA53 by clarifying
that jurisdiction is barred regardless of whether the discretionary judgment, decision,
or action is made in removal proceedings. This language appears to be intended to
supersede certain precedential federal district court decisions which have ruled that,
considering that the title of § 242 is “judicial review of orders of removal” and that
the context of § 242 as a whole concerns removal orders or actions, the bar on
50 E.g., Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003).
51 8 U.S.C. § 1252(a)(2).
52 8 U.S.C. § 1252(a)(2)(B)(ii).
53 8 U.S.C. § 1252(a)(2)(B).

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CRS-13
judicial review of discretionary decisions or actions of the Attorney General only
applies to such decisions or actions made in the context of removal proceedings.54
Although an affirmative asylum application may be made outside the context of a
removal proceeding, such denials are not reviewable until they may be raised again
in the context of a removal proceeding. In any case, the statute specifically exempts
the granting of asylum relief from the jurisdictional bar, whereas § 101 of House-
passed H.R. 418 is intended to prevent terrorists from obtaining asylum.
House-passed H.R. 418 § 101(g)(4) would provide that the judicial review
standards established in House-passed H.R. 418 § 101(d) shall take effect on the date
of enactment and apply to all cases pending before any court on or after such date.
Removal of Caps on Adjustment of Status for Asylees
Current Law. Section 209 of the INA provides that the Attorney General may
adjust the status of aliens granted asylum to lawful permanent residence if they
satisfy certain conditions, subject to a cap of 10,000 persons per fiscal year (aside
from certain groups of asylees who are or have been exempt from the cap or subject
to limits set in other legislation).
Changes Proposed by House-Passed H.R. 418. Subsection 101(f) of
House-passed H.R. 418 would eliminate the cap for adjustment of status for asylees.55
It would also replace references to the “Immigration and Naturalization Service” with
references to the “Department of Homeland Security” and replace references to the
“Attorney General” with references to the “Secretary of Homeland Security or the
Attorney General.” These provisions were not in H.R. 418 as introduced. House-
passed H.R. 418 § 101(g)(5) would provide that subsection 101(f) shall take effect
on the date of enactment of the legislation.
Repeal of the Study and Report on Terrorists and Asylum
Current Law. Section 5403 of the Intelligence Reform and Terrorism
Prevention Act of 2004 provides that “the Comptroller General of the United States
shall conduct a study to evaluate the extent to which weaknesses in the United States
asylum system and withholding of removal system have been or could be exploited
by aliens connected to, charged in connection with, or tied to terrorist activity”
including the extent to which precedential court decisions may have affected the
54 See, e.g., Mart v. Beebe, 94 F. Supp. 2d 1120, 1123-4 (D. Or. 2000). On the other hand
other cases such as CDI Information Services, Inc. v. Reno, 278 F.3d 616, 618-20 (6th Cir.
2002), have held that the plain language of the statute bars judicial review of all
discretionary decisions or actions of the Attorney General under title II of the INA
regardless of whether they were made in the context of a removal proceeding and that the
title of a statute or statutory section generally cannot be used to constrict the plain language
of the statute.
55 By the end of FY2003, there were nearly 160,000 cases pending for asylees to adjust to
legal permanent resident status. For background, see CRS Report RL32621, U.S.
Immigration Policy on Asylum Seekers, by Ruth Ellen Wasem.

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ability of the Federal Government to prove that an alien is a terrorist who should be
denied asylum and/or removed.
Changes Proposed by House-passed H.R. 418. Subsection 101(h) of
House-passed H.R. 418 would repeal the requirement for the study and report,
apparently because the other provisions in House-passed H.R. 418 § 101 would, or
at least are intended to, resolve the vulnerability of the asylum and withholding of
removal systems to terrorists.
II. Waiver of Laws to Facilitate Barriers at Border56
Section 102 of the IIRIRA generally provides for construction and strengthening
of barriers along U.S. land borders to deter illegal crossings in areas of high illegal
entry and specifically provides for 14 miles of barriers and roads along the border
near San Diego, beginning at the Pacific Ocean and extending eastward. IIRIRA §
102(c) provides for a waiver of the Endangered Species Act of 1973 (ESA)57 and the
National Environmental Policy Act of 1969 (NEPA)58 to the extent the Attorney
General determines is necessary to ensure expeditious construction of barriers and
roads. Despite the waiver of specific laws, construction of the San Diego area
barriers has been delayed due to a dispute involving other laws.59 California’s
Coastal Commission has prevented completion of the San Diego barriers on the
grounds that plans to fill a canyon in order to complete it are inconsistent with the
California Coastal Management Program, a state program approved pursuant to the
federal Coastal Zone Management Act (CZMA).60 The Bureau of Customs and
Border Protection (CBP) within the Department of Homeland Security believed that
the requirements of § 102(c) of the IIRIRA and the CZMA could not be reconciled.
Consequently, legislation was proposed and considered in the 108th Congress that
would have waived either a broader range of specific environmental, conservation,
and cultural laws or all laws. Also, reportedly the CBP has complied with a NEPA
requirement despite the waiver available to it.61
House-passed H.R. 418 would provide additional waiver authority over laws
that might impede the expeditious construction of barriers and roads along the border
and also prohibit judicial review of a waiver decision by the Secretary of Homeland
Security and relief for related damages.
56 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
57 16 U.S.C. §§ 1531 et seq.
58 42 U.S.C. §§ 4321 et seq.
59 See CRS Report RS22026, Border Security: Fences Along the U.S. International Border,
by Blas Nuñez-Neto and Stephen R. Viña.
60 16 U.S.C. §§ 1451-1464.
61 See California Coastal Commission, W8a Staff Report and Recommendation on
Consistency Determination, CD-063-03, October 2003, at 14.

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Current Law. Section 102(c) of the IIRIRA provided for a waiver of the ESA
and NEPA to the extent the Attorney General determines is necessary to ensure
expeditious construction of barriers and roads.
Changes Proposed by House-passed H.R. 418. Section 102 of House-
passed H.R. 418 would amend the current provision to require the Secretary of
Homeland Security to waive any and all laws as he determines necessary, in his sole
discretion, to ensure the expeditious construction of barriers and roads under IIRIRA
§ 102. Additionally, it would prohibit any court, administrative agency or other
entity from reviewing a waiver decision or action by the Secretary (or any cause or
claim arising from such a decision or action) and bar any court, administrative agency
or other entity from ordering compensatory, declaratory, injunctive, equitable relief
or other remedy for damages alleged to result from any such decision or action.62 The
waiver authority may not include a waiver of constitutional protections.63 Waivers
of similar breadth do not appear to be common in federal law.64 The judicial review
and remedies provisions may appear to bar state courts as well as federal courts, and
also agencies or entities such as the California Coastal Commission, from exercising
jurisdiction over waiver decisions and their consequences. This may also raise
constitutional issues with regard to Congress’ power to restrict state court jurisdiction
directly and to remove jurisdiction over constitutional claims.65
As discussed above, current statutes and the Reorganization Plan for the
Department of Homeland Security have not amended and clarified references to
executive authority throughout the INA. Accordingly, the reference in current law
to the Attorney General would be replaced by a reference to the Secretary of
Homeland Security.
III. Judicial Review of Orders of Removal66
Current Law. In the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)67 and the Illegal Immigration Reform and Immigrant Responsibility Act
62 This provision appears to address concerns raised during debate in the House of
Representatives that providing for a waiver of all laws would result in a spate of lawsuits
challenging the provision that would further delay construction. 151 Cong. Rec. H8899
(daily edition Oct. 8, 2004) (statement of Rep. Farr).
63 For further discussion of the scope of the waiver and other legal issues regarding § 102,
see CRS Congressional Distribution Memorandum, Sec. 102 of H.R. 418, Waiver of Laws
Necessary for Improvement of Barriers at Borders, Stephen R. Viña and Todd Tatelman
(Feb. 9, 2005).
64 Id.
65 Id.
66 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
67 110 Stat. 1214 (1996).

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CRS-16
of 1996 (IIRIRA)68 Congress restricted the availability of judicial review of removal
orders. Consequently, section 242(a)(2) of the INA restricts judicial review of
decisions relating to expedited removal of arriving aliens, certain denials of
discretionary relief, and removal orders for aliens removable for certain criminal
offenses. In cases resulting from the 1996 restrictions on judicial review, the
Supreme Court held that there is a strong presumption in favor of judicial review of
administrative actions; therefore, in the absence of a clear statement of congressional
intent to repeal habeas corpus jurisdiction over removal-related matters, such review
was still available after the 1996 changes.69 Furthermore, the Court also found that
eliminating any judicial review, including habeas review, without any substitute for
review of questions of law, including constitutional issues, would raise serious
constitutional questions.70 Therefore, it chose a statutory construction (habeas review
was not eliminated) which would not raise serious constitutional questions.
Changes Proposed by House-passed H.R. 418. The provision
restricting judicial review of orders of removal was not in H.R. 418 as introduced.
It is similar to § 3010 of House-passed H.R. 10 in the 108th Congress and to H.R. 100
in the 109th Congress.71 Section 105(a)(1) in the House-passed H.R. 418 would
restrict habeas review and certain other non-direct judicial review for certain removal
matters under § 242(a)(2) of the INA and would clarify that such restrictions (and
other judicial review restrictions under the INA) do not preclude federal appellate
court consideration of constitutional claims or other purely legal issues raised in
accordance with current review procedures under § 242 of the INA. The list of
matters for which judicial review is limited is expanded to include claims under the
Torture Convention; federal appellate review in accordance with current procedures
under § 242 of the INA is to be the sole and exclusive avenue for judicial review of
claims under the Torture Convention, except for the review procedure specified for
expedited removal orders for arriving aliens under § 242(e) of the INA. Section 105
would clarify that in all immigration provisions restricting judicial review, “judicial
review”and “jurisdiction to review” include habeas and other non-direct review and
that federal appellate review in accordance with current procedures under § 242 of
68 110 Stat. 3009-546 (1996).
69 INS v. St. Cyr, 533 U.S. 289 (2001); Calcano-Martinez v. INS, 533 U.S. 348 (2001).
70 According to the Court, the Suspension Clause, Article I, § 9, cl. 2, of the Federal
Constitution, requires some judicial intervention in removal/deportation cases and at least
protects the writ of habeas corpus as it existed in 1789. In light of ambiguities in the scope
of the writ of habeas corpus at common law and Supreme Court decisions suggesting that
judicial intervention can only be restricted to the extent consistent with the Constitution, the
Court found that a serious Suspension Clause issue would arise if it were to accept the INS
position that the 1996 acts eliminated habeas review without any substitute. To preclude
review of a pure question of law by any court would give rise to substantial constitutional
questions. The Court observed that traditionally the courts distinguished between ruling on
eligibility for relief (a factual issue) and ruling on the favorable exercise of discretion (a
question of law). Although a court could not rule on the validity of the actual granting of
discretionary relief, which is not a matter of right, it could rule on the legality of an
erroneous failure to exercise discretion at all.
71 H.R. 100 deals solely with judicial review of removal orders (sponsored by Reps. Dreier
and Sensenbrenner).

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CRS-17
the INA is the only avenue available for review of a removal order issued under any
provision of the INA, except for the review procedure specified for expedited
removal orders for arriving aliens under § 242(e) of the INA.
Section 105(a)(2) would provide that service of a petition for review of a
removal order does not stay the removal of an alien pending the court’s decision
unless the court orders a stay pursuant to § 242(f) of the INA. It would amend §
242(b)(9), concerning consolidation of issues for judicial review, to clarify that,
except as otherwise provided in § 242 of the INA, no court is to have jurisdiction for
habeas review or other non-direct judicial review of a removal order or questions of
law or fact arising from such an order. Subsection 242(g) of the INA concerning
exclusive jurisdiction would also be amended to clarify that no habeas review or
other non-direct judicial review would be available for any claim arising from a
decision or action by the Attorney General regarding the initiation and adjudication
of removal proceedings or the execution of removal orders against any alien.
The effective date of these amendments would be the date of enactment of the
legislation and the amendments would apply to cases in which the final
administrative order of removal, deportation or exclusion was issued before, on, or
after the date of enactment. Subsection 105(c) of House-passed H.R. 418 would
provide for the transfer of pending habeas cases from district courts to federal
appellate courts in which they could have been properly filed under § 242(b)(2) of
the INA or the transitional rules of the IIRIRA. Subsection 105(d) of House-passed
H.R. 418 would further provide that IIRIRA transition-rule cases filed under former
§ 106(a) of the INA, concerning judicial review of deportation and exclusion cases
and repealed by the IIRIRA, shall be treated as if they had been filed under § 242 of
the INA and that such petitions shall be the sole avenue for judicial review of
deportation or exclusion orders, notwithstanding any other provisions of law,
including habeas review or other non-direct judicial review.
While eliminating habeas and other non-direct judicial review, § 105 provides
that questions of law, including constitutional issues, still have a forum for review.
This appears intended to resolve the constitutional concerns raised previously by the
Supreme Court.
IV. Release of Aliens in Removal Proceedings on
Bond72
Through an amendment offered by Representative Pete Sessions and adopted
on voice vote, §§ 105-107 of House-passed H.R. 418 would significantly change the
standards and practices for the release of aliens against whom removal proceedings
have been started.73 Among the changes, (1) a bond of at least $10,000 would be
required for release of an alien who has been issued an order to show cause or notice
72 Discussion of this topic was prepared by Larry M. Eig, Legislative Attorney.
73 Both the judicial review provision in the manager’s amendment to H.R. 418 and the first
section of the amendment offered by Representative Sessions are labeled § 105. A clean
version of House-passed H.R. 418 correcting this oversight has yet to be released.

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to appear (documents used to initiate the removal hearing process) unless an
immigration judge issues a signed order allowing release on personal recognizance
and (2) highly detailed requirements and procedures for delivery bonds would be
added to the INA, as would authorities and support for sureties and bonding agents
to enforce them.
Historically, aliens put in deportation proceedings were released without bond
pending a determination of their deportability, unless they were determined to be a
danger to the community or a flight risk. Over the years, Congress began to bar any
release of certain aliens whose deportability had yet to be determined, most
particularly aliens who were security risks or (with limited exception) had committed
serious crimes.74
Current INA provisions on authority to release aliens in deportation proceedings
on bond are sparse. Aside from aliens subject to mandatory detention (e.g., suspected
terrorists, security risks, most criminal aliens), immigration authorities, on initiating
removal proceedings against an alien, “may release the alien on bond of at least
$1500 with security approved by, and containing conditions prescribed by, the
Attorney General.”75 Factors to be taken into consideration on deciding whether to
release on bond, and conditions imposed thereunder, were developed largely as a
matter of administrative practice.
The new emphasis to be placed on the bonding process is readily seen in
proposed changes to the basic bonding authority provision. Under House-passed
H.R. 418, immigration authorities, on initiating removal proceedings against an alien,
shall permit agents, servants and employees of corporate sureties
to visit in person with [detained aliens] . . . and may release the
alien on a delivery bond of at least $10,000, with security
approved by the Secretary [of DHS] and containing conditions
and procedures prescribed by [H.R. 418, as described below, and
the Secretary], but the Secretary shall not release the alien on or
to his own recognizance unless an order of an immigration judge
expressly finds and states in a signed order to release the alien
to his own recognizance that the alien is not a flight risk and is
not a threat to the United States.76
Under House-passed H.R. 418, bonds would expire the earlier of (1) one year
or (2) cancellation, surrender of the principal (i.e., the alien), or nonpayment of
renewal premiums. On payment of renewal premiums, bonds could be rolled over
for additional terms (unless otherwise terminated).77
74 Mandatory detention provisions may be found, for example, in INA §§ 236(c)(1) (criminal
aliens) and 236A (suspected terrorists). 8 U.S.C. §§ 1226(c)(1), 1226A.
75 INA § 236(a)(2)(A); 8 U.S.C. § 1226(a)(2)(A).
76 Proposed § 236(a)(2) of the INA, as set forth in § 106 of House-passed H.R. 418.
77 H.R. 418, §§ 105(b)(3), (4) (as passed the House).

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The use of delivery bonds as enforcement mechanisms would be further
implemented through provisions on cancellation, surrender, forfeiture, and delivery.
During the term of the bond, for example, the obligations of the surety and bonding
agent (e.g., assuring the surrender of the principal under a deportation order, at the
risk of forfeiting part or all of the bond amount) could be cancelled upon, inter alia,
(1) the death, incarceration or disability of the principal; (2) nonrenewal after the
principal has been surrendered for removal; (3) proof that the principal has departed
the U.S.; or (4) evidence of fraud or misrepresentation in the bond application.78
Aside from surrendering a principal for removal, a surety or bond agent may
surrender the principal before the principal violates obligations to appear if the surety
or bond agent believes the principal has become a flight risk.79 In such a case, the
principal forfeits all or part of the bond premium if the principal has, for example,
tried to evade the surety or bonding agent or otherwise has not kept the surety or
bonding agent apprized of his whereabouts.80
Again, the primary purpose of the proposed bonding regime is to assure that
aliens ordered deported or removed actually leave the U.S. Upon the mailing of a
final order of deportation or removal, a bonding agent and surety has 15 months to
take the principal into custody and surrender him to DHS, absent a showing that the
principal, for example, is deceased, incarcerated, disabled, or out of the country.
After the 15 month initial compliance period, the surety is assessed a penalty of 25%
of the bond amount if the principal is surrendered within 18 months of the mailing
of the order, 50% if the principal is surrendered within 21 months of the mailing of
the order, and so on for three-month periods. However, the surety may recover up
to 50% of the bond amount upon surrendering the principal after the compliance
period has expired (i.e., 24 months after the final order of deportation or removal was
mailed).81
Of note in every bonding regime are the powers of bonding agents in taking
custody of principals and the support lent by the government to this effort. Upon a
violation of any conditions on a bond or upon a final order of deportation or removal,
DHS is to issue a warrant for the principal’s arrest and enter the warrant in the
National Crime Information Center (NCIC) computerized database. The bonding
agent and surety are also ordered at that time to take the principal into custody for
surrender to DHS. Pursuant to § 105(b)(7) of House-passed H.R. 418, there would
be 10 designated “turn in” centers nationwide to take in surrendered principals. To
assist in the pursuit of principals, DHS, by regulations subject to congressional
approval, would give bonding agents “full and complete access, free of charge, to any
and all information . . . in the care custody or control of the United States
Government or any State or local government or any subsidiary or police agency
thereof regarding the principal that . . . may be helpful in locating and surrendering
78 Id. at § 105(b)(5). The bill is unclear on the status of a bond upon, for example, a finding
that the principal is not deportable, granting the principal relief from removal, or placing the
principal’s case in deferred status.
79 Id. at § 105(b)(6).
80 Id.
81 Id. at § 105(b)(8)

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the principal.” Separately, a bonding agent or surety would have “the absolute right
to locate, apprehend, arrest, detain, and surrender any principal, wherever he or she
may be found, who violates any of the terms or conditions of his or her bond.”82 The
purpose and prospective effect of this latter provision may not be immediately clear.
As stated above, a surety or bonding agent may surrender a principal to DHS
even absent a breach of bond conditions if the principal appears to become a flight
risk. In these cases, a bonding agent or surety may petition DHS or a federal court,
free of fees and costs, for an arrest warrant and thereafter may apprehend, detain, and
surrender the principal to DHS detention officials or other facilities authorized to
hold federal detainees.83
V. Inadmissibility and Deportability Due to Terrorist
and Terrorist-Related Activities84
Engaging in terror-related activity has strict consequences relative to an alien’s
ability to lawfully enter or remain in the United States.85 The Immigration and
Nationality Act (INA) provides that aliens at any time engaged in specified
terror-related activities, or indirectly supporting them in specified ways, cannot
legally enter the United States. Also, aliens at any time engaged in terrorist activities
are deportable if in the U.S., but the terrorism grounds for deportation do not now
extend to certain indirect support, such as representation of or membership in a
terrorist organization. If implemented, House-passed H.R. 418 would, inter alia, (1)
broaden the INA’s definitions of “terrorist organization” and “engage in terrorist
activity”; (2) expand the grounds for inadmissibility based on support of
terror-related activity; and (3) make the terror-related grounds for deportability
identical to those for inadmissibility.
Definition of “Engage in Terrorist Activity”
Under the INA, to “engage in terrorist activity” is a separate concept from
terrorist activity itself. Whereas “terrorist activity” includes direct acts of violence86
— for instance, hijacking a plane or threatening persons with bodily harm in order
to compel third-party action — actions that constitute being “engage[d] in terrorist
activity” include both these types of acts and other, specified acts that facilitate
terrorist activity, such as preparing, funding, or providing material support for
82 Id.
83 H.R. 418, § 105(b)(7) (as passed the House).
84 Discussion of this topic was prepared by Michael John Garcia, Legislative Attorney.
85 For further background, see CRS Report RL32564, Immigration: Terrorist Grounds for
Exclusion of Aliens, by Michael John Garcia.
86 INA § 212(a)(3)(B)(iii); 8 U.S.C. § 1182(a)(3)(B)(iii) (defining “terrorist activity”).

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terrorist activities. Aliens who engage in terrorist activity are inadmissible and
deportable.87
Again, and as elaborated upon below, the term “engage in terrorist activity,”
while including certain actions in direct support of terrorist acts or organizations, is
not an essential element of all terrorism-based grounds for inadmissibility (as
opposed to deportation). Distinct from support activities that amount to “engaging
in terrorist activities” are actions that support terrorism more indirectly through group
membership or advocacy, some of which render an alien inadmissible but, as of now,
not deportable.
Current Law Defining “Engage in Terrorist Activity”. In order to
“engage in terrorist activity” for purposes of the INA, an alien must either as an
individual or as part of an organization:
! commit or incite to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist activity;
! prepare or plan a terrorist activity;
! gather information on potential targets for a terrorist activity;
! solicit funds or other things of value for a (1) terrorist activity, (2) a
designated terrorist organization, or (3) a non-designated terrorist
organization, unless the solicitor can demonstrate that he did not
know, and should not reasonably have known, that the solicitation
would further the non-designated organization’s terrorist activity;
! solicit another individual to (1) engage in terrorist activity, (2) join
a designated terrorist organization, or (3) join a non-designated
terrorist organization, unless the solicitor can demonstrate that he
did not know, and should not reasonably have known, that the
solicitation would further the non-designated organization’s terrorist
activity; or
! commit an act that the alien knows, or reasonably should know,
provides material support — including a safe house, transportation,
communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or
training — to (1) the commission of a terrorist activity, (2) an
individual or organization that the alien knows or should reasonably
know has committed or plans to commit a terrorist activity, (3) a
designated terrorist organization, or (4) a non-designated terrorist
organization, unless the support provider can demonstrate that he did
not know, and should not reasonably have known, that the support
would further the non-designated organization’s terrorist activity.88
With respect to acts related to a “terrorist organization,” acts through or on
behalf of an organization formally designated by the Government as terrorist are
covered regardless of an individual’s knowledge of the organization’s terrorist
87 INA §§ 212(a)(3)(B)(i)(I), 237(a)(4)(B); 8 U.S.C. §§ 1182(a)(3)(B)(i)(I), 1227(a)(4)(B).
88 INA § 212(a)(3)(B)(iv); 8 U.S.C. § 1182(a)(3)(B)(iv).

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connections. However, if an alien has acted as a solicitor or provided material
support for an organization that has not been formally designated as a terrorist
organization by the United States, but which has nevertheless committed, incited,
planned, prepared, or gathered information for a terrorist activity, the alien may be
deemed not to have engaged in terrorist activity himself if he can demonstrate that
he did not and should not have reasonably known that his solicitation or material
support would further the organization’s terrorist activities.89
The material support clause within the INA’s definition of “engage in terrorist
activity” may be waived in application to a specific alien if the Secretary of State,
after consultation with the Attorney General, or the Attorney General, after
consultation with the Secretary of State, concludes in his sole unreviewable
discretion that this clause should not apply.90
Changes Proposed by House-passed H.R. 418 to the Definition of
“Engage in Terrorist Activity”. Section 103(b) of House-passed H.R. 418 would
replace the current definition of “engage in terrorist activity” found in INA §
212(a)(3)(B)(iv) with a new definition. For the most part, this definition would be
identical to the previous version. However, a few significant changes would also be
made.
More Stringent Provisions Relating to Material Support, Solicitation
of Funds or Participation in Nondesignated Terrorist
Organizations/Activities. House-passed H.R. 418 would make it more difficult
for an alien who has provided material support or acted as a solicitor for either a
person engaged in terrorist activity or a non-designated terrorist organization to avoid
being found to have engaged in terrorist activity himself. Under present law, an alien
may avoid being found to have engaged in terrorist activity if he can demonstrate that
he did not and should not have reasonably known that his solicitation or material
support to an individual or non-designated terrorist organization would further
terrorist activities.91 Pursuant to the amendments proposed by House-passed H.R.
418 § 103(b), an alien would have to demonstrate by clear and convincing evidence
(a higher standard) that he did not and should not have reasonably known that his
solicitation or material support would further a terrorist activity or organization in
order to be found not to have engaged in terrorist activity himself.92 As is the case
89 INA § 212(a)(3)(B)(iv)(IV)-(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)-(VI). If an alien
provides material support for, or solicits funding or participation in, a terrorist activity or
a group designated as a terrorist organization by the United States, he is deemed to have
engaged in terrorist activity.
90 INA § 212(a)(3)(B)(iv)(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). Although H.R. 418
originally would have rescinded this provision, the House-passed version of the bill includes
an amendment that would preserve the authority of the Attorney General or Secretary of
State to waive the material support clause in specific cases.
91 INA § 212(a)(3)(B)(iv)(IV)-(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)-(VI).
92 Under House-passed H.R. 418, if an alien solicits funding or participation or material
support for either a terrorist activity or a group designated as a terrorist organization by the
United States, he is deemed to have engaged in terrorist activity. See H.R. 418 § 103(b).
(continued...)

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under current law, House-passed H.R. 418 would permit the material support clause
of the definition of “engage in terrorist activity” to be waived in application to a
specific alien if the Secretary of State, after consultation with the Attorney General,
or the Attorney General, after consultation with the Secretary of State, concludes in
his sole unreviewable discretion that this clause should not apply.
Material Support to Members of Designated Terrorist
Organizations. House-passed H.R. 418 would expand the definition of “engage
in terrorist activity” to include providing material support to a member of a
designated terrorist organization. Under current law, a person who provides material
support to a member of a terrorist organization, but not to the organization directly,
might not be considered to have engaged in terrorist activity himself unless he knew
or should have known that his support was going to a person that had committed or
planned to commit a terrorist activity.
Effective Date of Proposed Changes to the Definition of “Engage
in Terrorist Activity”. Pursuant to § 103(c) of House-passed H.R. 418, the
proposed changes to the INA’s definition of “engage in terrorist activity” would be
effective on the date of House-passed H.R. 418’s enactment, and apply to removal
proceedings instituted before or after House-passed H.R. 418’s enactment, as well
as to acts and conditions constituting a ground for inadmissibility occurring or
existing before or after House-passed H.R. 418’s enactment.
Definition of “Terrorist Organization”
The INA defines “terrorist organization” to include two general categories of
groups. The first category are those groups that are designated as terrorist
organizations by the U.S., thereby providing the public with notice of these
organizations’ involvement in terrorism. The second category includes other groups
that carry out specified terror-related activities, but have not been designated as
terrorist groups.93 For simplicity, this report refers to groups falling within this
second category as nondesignated terrorist organizations. Certain forms of assistance
to a “terrorist organization”are grounds for inadmissibility and deportability because
they amount to “engaging in a terrorist activity.” Furthermore, under current law,
certain memberships in or associations with a “terrorist organization” may be
grounds for inadmissibility even though such membership or association, vel non,
may not make an alien deportable.94 Accordingly, amending the definition of
92 (...continued)
This standard is the same as that found in current law.
93 The USA PATRIOT Act amended INA § 212 to expand the definition of “terrorist
organization” to potentially include terrorist organizations not designated by the Secretary
of State pursuant to INA § 219. A group that is engaged in terrorist activities might not be
designated as a terrorist organization because, inter alia, the group’s activities escape the
notice of U.S. officials responsible for designated organizations as terrorist; the group has
shifting alliances; or designating the group as a terrorist organization would jeopardize
ongoing U.S. criminal or military operations.
94 See INA §§ 212(a)(3)(B)(i)(IV)-(V), 212(a)(3)(F); 8 U.S.C. §§ 1182 (a)(3)(B)(i)(IV)-(V),
(continued...)

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“terrorist organization” might have a considerable impact on the reach of other
terrorism-related provisions of the INA.
Current Law Defining “Terrorist Organization”. INA § 212(a)(3)(B)(vi)
presently defines “terrorist organization” as including:
! any group designated by the Secretary of State as a terrorist
organization pursuant to INA § 219;95
! upon publication in the Federal Register, any group designated as a
terrorist organization by the Secretary of State in consultation with
or upon the request of the Attorney General, after finding that the
organization commits, incites, plans, prepares, gathers information,
or provides material support for terrorist activities; or
! a group of two or more individuals, whether organized or not, which
commits, incites, plans, prepares, or gathers information for terrorist
activities.96
Changes Proposed by House-passed H.R. 418. Section 103(c) of
House-passed H.R. 418 amends the current definition of “terrorist organization”
found in INA § 212(a)(3)(B)(vi). The proposed amendments, discussed below, are
significant and, in combination with the proposed expansion of the types of
associations with a terrorist organization that can lead to an alien’s
inadmissibility/deportation, may greatly amplify the reach of the terrorism provisions
of the INA generally. Among other contexts, the proposed changes could especially
impact aliens associated with groups that are part of a web of fund raising that is
found to support a terrorist activity in some measure.
Retention of Attorney General’s Role in the Designation of Terrorist
Organizations. Most of the authority to administer immigration law that formerly
was held by the Attorney General has been transferred to the Secretary of Homeland
Security, though some authorities have been retained. Section 103(c) of H.R. 418
provides both the Secretary of Homeland Security and the Attorney General with an
express role in the designation of groups as terrorist organizations that are not
otherwise designated as such by the Secretary of State pursuant to INA § 219.
House-passed H.R. 418 would amend the INA’s definition of “terrorist organization”
to include any group designated as such by the Secretary of State, in consultation
with or upon the request of the Attorney General or the Secretary of Homeland
Security, to designate a group as a terrorist organization after finding that the
organization “engages in terrorist activity,” as defined under INA § 212(a)(3)(B)(iv).
Expanding the Activities Qualifying a Nondesignated Group as a
Terrorist Organization. House-passed H.R. 418’s proposed amendment to the
94 (...continued)
1182(a)(3)(F).
95 For further discussion of this provision, see CRS Report RL32120; The ‘FTO List’ and
Congress: Sanctioning Designated Foreign Terrorist Organizations, by Audrey Kurth
Cronin.
96 INA § 212(a)(3)(B)(vi); 8 U.S.C. § 1182 (a)(3)(B)(vi).

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INA’s definition of “terrorist organization” could significantly increase the number
of groups that would constitute terrorist organizations despite not being designated
as such by the Secretary of State.
First, under current law, a group not otherwise designated by the Secretary of
State can only be deemed a terrorist organization if the group commits, incites,
plans, prepares, or gathers information for terrorist activity.97 Under House-passed
H.R. 418, a group not otherwise designated as a terrorist organization could also be
considered such if it solicits funds or membership for a terrorist activity or terrorist
organization or otherwise provides material support for a terrorist activity or
organization. The reach of this extension may not be altogether clear: it appears
uncertain as to whether or how a group could escape coverage by showing that it
could not reasonably have known that an organization for which it solicited or
provided material support was itself involved in conducting terrorist acts or
supporting a “terrorist organization,” (as redefined), and so on down the chain.
Second, House-passed H.R. 418 § 103(c) would further amend “terrorist
organization” to include any non-designated group that has a subgroup that “engages
in terrorist activity,” as expanded by House-passed H.R. 418 in this context to
include either (1) direct participation in or support of a terrorist activity or
organization, or (2) indirect support through solicitation, recruitment, etc. The
upshot of the inclusion of subgroups may be to further lower the threshold for how
substantial, apparent, and immediate a group’s support must be for a terrorist activity
or organization for the group to be considered “terrorist” and for its members to
potentially fall within the terrorism provisions of the INA. For example, if
organization A has a subgroup A1 that raises funds for organization B (among other
groups) and organization B distributes funds to organization C (among other groups),
which has a subgroup C1 that at some point provided support to a terrorist activity
or organization, organization A apparently would qualify as a terrorist organization
(and its member fall under the grounds of inadmissibility/deportability discussed
below) absent the group’s ability to somehow extricate itself by showing it could not
have reasonably drawn the connection between its subgroup’s fund raising and
subgroup C1.
Effective Date of Proposed Changes to the Definition of “Terrorist
Organization”. Pursuant to § 103(c) of House-passed H.R. 418, the proposed
changes to the INA’s definition of “terrorist organization” would be effective on the
date of House-passed H.R. 418’s enactment, and apply to removal proceedings
instituted before or after House-passed H.R. 418’s enactment, as well as to acts and
conditions constituting a ground for inadmissibility occurring or existing before or
after House-passed H.R. 418’s enactment.
97 See INA § 212(a)(3)(B)(vi)(III); 8 U.S.C. § 1182 (a)(3)(B)(vi)(III).

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Terror-Related Grounds for Inadmissibility of Aliens
The INA categorizes certain classes of aliens as inadmissible, making them
“ineligible to receive visas and ineligible to be admitted to the United States.”98
Aliens who “engage in terrorist activity,” as defined by INA § 212(a)(3)(B)(iv), are
inadmissible. In addition, several other terror-related activities are grounds for
inadmissibility.
Current Law. Pursuant to INA § 212(a)(3)(B)(i),99 an alien is inadmissible on
terror-related grounds if the alien:
! has engaged in terrorist activity;
! is known or reasonably believed by a consular officer or the
Attorney General to be engaged in or likely to engage in terrorist
activity upon entry into the United States;
! has, under circumstances indicating an intention to cause death or
serious bodily harm, incited terrorist activity;
! is a representative of (1) a foreign terrorist organization, as
designated by the Secretary of State, or (2) a political, social or other
similar group whose public endorsement of acts of terrorist activity
the Secretary of State has determined undermines United States
efforts to reduce or eliminate terrorist activities;
! is a member of a foreign terrorist organization as designated by the
Secretary of State under INA § 219, or an organization which the
alien knows or should have known is a terrorist organization;
! is an officer, official, representative, or spokesman of the Palestine
Liberation Organization (PLO);
! has used his position of prominence within any country to endorse
or espouse terrorist activity, or to persuade others to support terrorist
activity or a terrorist organization, in a way that the Secretary of
State has determined undermines United States efforts to reduce or
eliminate terrorist activities; or
! is the spouse or child of an alien who is inadmissible under this
section, if the activity causing the alien to be found inadmissible
occurred within the last five years, unless the spouse or child (1) did
not and should not have reasonably known about the terrorist
activity or (2) in the reasonable belief of the consular officer or
Attorney General, has renounced the activity causing the alien to be
found inadmissible under this section.100
In addition, INA § 212(a)(3)(F) designates an alien as inadmissible if the
Secretary of State, after consultation with the Attorney General, or the Attorney
General, after consultation with the Secretary of State, determines that the alien has
98 INA § 212(a); 8 U.S.C. § 1182(a).
99 8 U.S.C. § 1182(a)(3)(B)(i).
100 The limited exception to inadmissibility for the spouse and child of an alien who is
inadmissible on terror-related grounds is found in INA § 212(a)(3)(B)(ii).

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been associated with a terrorist organization and intends while in the United States
to engage solely, principally, or incidentally in activities that could endanger the
welfare, safety, or security of the United States.
Changes to Terror-Related Grounds for Inadmissibility Proposed
by House-passed H.R. 418. Section 103(a) of House-passed H.R. 418 would
reorganize and generally expand the terror-related grounds for inadmissibility. Given
that House-passed H.R. 418 § 103(b)-(c) would broaden the INA’s definitions of
“terrorist organization” and “engage in terrorist activity” — two phrases frequently
used in the INA provisions establishing the terror-related grounds for inadmissibility
— House-passed H.R. 418 would expand the terror-related grounds for
inadmissibility more broadly than might first appear. The interplay between the
proposed definition of “terrorist organization,” discussed above, and the expansion
of covered support and associational activities, discussed below, may be particularly
significant in broadening the grounds for inadmissibility.
The following paragraphs discuss the alterations that House-passed H.R. 418
would make to the terror-related grounds for inadmissibility.
Effects of Expanded Definition of “Engage in Terrorist Activity” on
Terror-Related Grounds for Inadmissibility. As in current law, House-passed
H.R. 418 provides that any alien who has engaged in a terrorist activity is
inadmissible.101 As previously mentioned, § 103(b) of House-passed H.R. 418 would
expand the applicable definition of the term “engage in terrorist activity.” Thus,
under House-passed H.R. 418, an alien who solicited on behalf of or provided
material support for a non-designated terrorist organization would be inadmissible
unless he demonstrated by clear and convincing evidence that he did not and should
not have reasonably known that he was soliciting on behalf of or providing material
support for a group that met the definition of “terrorist organization” found in INA
§ 212(a)(3)(B)(vi)(III).
Retention of Attorney General’s Role in Deeming an Alien
Inadmissible for Terror-Related Activity. Though recent law has transferred
most immigration enforcement authority to the Department of Homeland Security,
House-passed H.R. 418 would allow a consular officer, the Secretary of Homeland
Security, or the Attorney General to declare an alien inadmissible if the alien is
known to be engaged in terrorist activity or is likely to engage in such activity upon
entry into the United States.102
Incitement of Terrorist Activity. House-passed H.R. 418 does not alter the
current ground for inadmissibility on account of the incitement of terrorist activity.
Representation of a Terrorist Organization or Political Group
Espousing Terrorist Activity. Under current law, a representative of a foreign
terrorist organization designated as such by the Secretary of State is inadmissible.
House-passed H.R. 418 would expand this ground for inadmissibility to deny
101 H.R. 418, § 103(a).
102 INA § 212(a)(3)(B)(i)(II); 8 U.S.C. § 1182(a)(3)(B)(i)(II).

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admission to a representative of any group that constituted a “terrorist organization,”
as defined under INA § 212(a)(3)(B)(vi). As previously discussed, House-passed
H.R. 418 would expand the breadth of the term “terrorist organization” for purposes
of the INA.
House-passed H.R. 418 would also make inadmissible any representative of a
political, social or other similar group that endorses or espouses terrorist activity.103
Under current law, such representatives are only inadmissible if (1) the organization
publicly endorses terrorist activity and (2) the Secretary of State determines that such
endorsement undermines U.S. efforts to reduce or eliminate terrorist activities.104
Membership in a Terrorist Organization. House-passed H.R. 418 would
substantially increase the grounds for inadmissibility on account of membership in
a terrorist organization. Presently, membership in a foreign terrorist organization
designated by the Secretary of State under INA § 219, or membership in an
organization that the alien knows or should have known is a terrorist organization,
makes an alien inadmissible.105 House-passed H.R. 418 would facilitate the removal
of a member of a non-designated terrorist organization by shifting the burden from
the Government to show that the alien knew or should have known the nature of the
organization to the alien to demonstrate by clear and convincing evidence that he did
not know, and should not reasonably have known, that the organization was a
terrorist organization.
Again, the proposed expansion of “terrorist organization” could significantly
amplify the potential impact of these changes.
Officers, Spokesmen, and Representatives of the Palestine
Liberation Organization. In both current law and House-passed H.R. 418, an
alien who is an officer, official, representative, or spokesman of the PLO is
inadmissible.
Expanding Inadmissibility Grounds for Espousal of Terrorist
Activity. Under current law, aliens are inadmissible for the espousal of terrorist
activity only if they (1) use positions of prominence (within any country) to endorse
or espouse terrorist activity, or to persuade others to support terrorist activity or a
terrorist organization, and (2) do so in a way that undermines U.S. efforts to reduce
or eliminate terrorist activities, based on a determination by the Secretary of State.
House-passed H.R. 418 would make inadmissible any alien who espouses or
endorses terrorist activity, or persuades others to support terrorist activity or a
terrorist organization, regardless of whether the alien has a position of prominence
and his espousal undermines U.S. efforts to reduce terrorism in the opinion of the
Secretary of State.
It is important to note that this ground for inadmissibility does not include a
mens rea requirement. It appears that an alien who persuades others to support a
103 H.R. 418, § 103(a).
104 INA § 212(a)(3)(B)(i)(IV); 8 U.S.C. § 1182(a)(3)(B)(i)(IV).
105 INA § 212(a)(3)(B)(i)(V); 8 U.S.C. § 1182(a)(3)(B)(i)(V).

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terrorist organization would be deemed inadmissible even if the alien had no
knowledge of the organization’s terrorist activities. The possibility of this occurring
may not be improbable, given House-passed H.R. 418’s proposed expansion of the
definition of “terrorist organization” to include any group that engages, or has a
subgroup that engages in terrorist activity, including soliciting funds or otherwise
providing material support for a “terrorist organization” (which itself may be one
solely because it has, for example, a subgroup that has solicited or provided funds to
another “terrorist organization”).
Receiving Military-Type Training from or on Behalf of a Terrorist
Organization. House-passed H.R. 418 would make inadmissible any alien who has
received military-type training106 from or on behalf of any organization that, at the
time the training was received, was a terrorist organization, a term defined under INA
§ 212(a)(3)(B)(vi) (and amended by House-passed H.R. 418 § 103(c)). Currently,
the receipt of such training is only a deportable offense.107 It is important to note that
this ground for inadmissibility does not include a mens rea requirement, and does not
specify that the organization must be designated as a terrorist organization by the
United States. Accordingly, it appears that an alien who receives military-type
training from or on behalf of a terrorist organization would be inadmissible,
regardless of whether the alien was aware or should have been aware that the
organization was engaged in terrorist activity.
Inadmissibility of a Spouse or Child of an Alien Inadmissible on
Terror-Related Grounds. House-passed H.R. 418 neither alters the
inadmissibility of the spouse or child of an alien who was deemed inadmissible on
terror-related grounds nor eliminates the current exception to inadmissibility for an
alien’s spouse or child who (1) did not and should not have reasonably known about
the terrorist activity or (2) in the reasonable belief of the consular officer or Attorney
General, has renounced the terror-related activity causing the alien to be found
inadmissible.
Association with a Terrorist Organization. House-passed H.R. 418 does
not amend INA § 212(a)(3)(F), which designates an alien as inadmissible if the
Secretary of State, after consultation with the Attorney General, or the Attorney
General, after consultation with the Secretary of State, determines that the alien has
been associated with a terrorist organization and intends while in the United States
to engage solely, principally, or incidentally in activities that could endanger the
welfare, safety, or security of the United States.
Effective Date of Proposed Changes to the Terror-Related Grounds
for Inadmissibility. Pursuant to § 103(c) of House-passed H.R. 418, the proposed
changes to the terror-related grounds for inadmissibility would be effective on the
date of House-passed H.R. 418’s enactment, and apply to removal proceedings
106 Although House-passed H.R. 418 states that the term “military-type training” is defined
for purposes of the bill by 18 U.S.C. § 2339D(c)(1), no such definition presently exists in
the U.S. Code.
107 See INA § 237(a)(4)(E); 8 U.S.C. § 1227(a)(4)(E) (as amended by the Intelligence
Reform and Terrorist Prevention Act of 2004, P.L. 108-458, § 5402).

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instituted before or after House-passed H.R. 418’s enactment, as well as to acts and
conditions constituting a ground for inadmissibility occurring or existing before or
after House-passed H.R. 418’s enactment.
Terror-Related Grounds for Deportability of Aliens
Aliens found to have engaged in terror-related activities following admission
into the United States may be deportable. Presently, the terror-related grounds for
inadmissibility are significantly broader than those for deportability.
Current Law. INA § 237(a)(4)(B) provides that an alien is deportable if he
commits any of the actions falling under the INA’s definition of “engage in terrorist
activity.” Pursuant to § 5402 of the Intelligence Reform and Terrorism Prevention
Act of 2004, any alien who has received military-type training from or on behalf of
any organization that, at the time the training was received, was designated as a
terrorist organization by the Secretary of State, is deportable.108
Changes Proposed by House-passed H.R. 418. Section 104(a) of
House-passed H.R. 418 would significantly expand the terror-related grounds for
deportability, so that any alien who is described in the inadmissibility provisions of
INA §§ 212(a)(3)(B) (relating to terrorist activity) or 212(a)(3)(F) (relating to
association with a terrorist organization) would also be deportable. The following
sections discuss the new deportation grounds that would be added by House-passed
H.R. 418, presuming that House-passed H.R. 418’s provisions expanding the scope
of INA § 212(a)(3)(B) (terror-related grounds for inadmissibility) were also enacted.
Effects of Expanded Definition of “Engage in Terrorist Activity” on
Terror-Related Grounds for Deportability. A person who engages in terrorist
activity is both inadmissible and deportable under current law. If House-passed H.R.
418 is enacted, this would remain the case. However, as previously mentioned, §
103(b) of House-passed H.R. 418 would also expand the applicable definition of the
term “engage in terrorist activity.” Thus, an alien who provided material support or
solicited funds or participation in a non-designated terrorist organization would be
deportable unless he demonstrated by clear and convincing evidence that he did not
and should not have reasonably known that the organization was a terrorist
organization.
Designation as Deportable for Terror-Related Activity by a Consular
Officer, the Attorney General, or the Secretary of Homeland Security.
House-passed H.R. 418 would enable a consular officer, the Attorney General, or the
Secretary of Homeland Security to declare an alien inadmissible who is known to be
engaged in terrorist activity or is likely to engage in such activity upon entry into the
United States. Although House-passed H.R. 418 provides that “any alien considered
inadmissible [on terror-related grounds]...is deportable,”109 it is unclear whether this
would mean that a consular officer, the Attorney General, or the Secretary of
Homeland Security could declare an alien deportable if the alien was known to be
108 Id.
109 H.R. 418, § 104(a).

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engaged in terrorist activity or was likely to engage in such activity within the United
States or what procedures would apply in such a circumstance.
Incitement of Terrorist Activity. House-passed H.R. 418 would make any
alien who incited terrorist activity, under circumstances indicating an intention to
cause death or serious bodily harm, deportable as well as inadmissible.
Representation of a Terrorist Organization or Political Group
Espousing Terrorist Activity. House-passed H.R. 418 would make deportable
as well as inadmissible any representative of either (1) a terrorist organization or (2)
a political, social or other similar group that endorses or espouses terrorist activity.
Membership in a Terrorist Organization. House-passed H.R. 418 would
make it a deportable offense for an alien to be either (1) a member of a terrorist
organization designated by the Secretary of State, or (2) a member of any group that
constitutes a terrorist organization, unless the alien can demonstrate by clear and
convincing evidence, that he did not know, and should not reasonably have known,
that the organization was a terrorist organization.
Officers, Spokesmen, and Representatives of the Palestine
Liberation Organization. Pursuant to House-passed H.R. 418, an alien who is an
officer, official, representative, or spokesman of the PLO would be made deportable.
Espousal of Terrorist Activity. An alien who espouses or endorses terrorist
activity, or persuades others to support terrorist activity or a terrorist organization,
would be deportable as well as inadmissible if House-passed H.R. 418 were enacted.
As discussed previously, this ground for inadmissibility/deportability does not
include a mens rea requirement, meaning that an alien who persuades others to
support a terrorist organization would be considered deportable even if the alien had
no knowledge of the organization’s terrorist activities.
Receiving Military-Type Training from or on Behalf of a Terrorist
Organization. Section 104(b) of House-passed H.R. 418 would repeal the current
grounds for deportability on account of receiving military-type training from or on
behalf of a terrorist organization designated by the Secretary of State. Instead, the
provision added by House-passed H.R. 418 making aliens who receive military-type
training from or on behalf of any terrorist organization (i.e., not simply those
designated as such by the Secretary of State) inadmissible would also be grounds for
deporting an alien. Given House-passed H.R. 418’s amendments to the INA’s
definition of “terrorist organization” and the terror-related grounds for
inadmissibility, it appears that an alien who receives military-type training from or
on behalf of a terrorist organization would be deportable regardless of whether the
alien was aware that the organization was engaged in terrorist activity.
Deportability of a Spouse or Child of an Alien Inadmissible on
Terror-Related Grounds. House-passed H.R. 418 would make the spouse or
child of an alien inadmissible on terror-related grounds deportable, if the
terror-related activity causing the alien to be inadmissible occurred within the last
five years, unless the alien’s spouse or child (1) did not and should not have
reasonably known about the terrorist activity or (2) in the reasonable belief of the

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consular officer or Attorney General, has renounced the terror-related activity causing
the alien to be found inadmissible.
Association with a Terrorist Organization as Grounds for
Deportability. House-passed H.R. 418 would make an alien deportable on the
same grounds that the alien would be inadmissible pursuant to INA § 212(a)(3)(F).
Accordingly, an alien would be deportable if the Secretary of State, after consultation
with the Attorney General, or the Attorney General, after consultation with the
Secretary of State, determines that the alien has been associated with a terrorist
organization and intends while in the United States to engage solely, principally, or
incidentally in activities that could endanger the welfare, safety, or security of the
United States.
Effective Date of Proposed Changes to the Terror-Related Grounds
for Deportability. Pursuant to § 104(a)(2) of House-passed H.R. 418, the proposed
changes to the terror-related grounds for deportability would be effective on the date
of House-passed H.R. 418’s enactment, and would apply to acts and conditions
constituting a ground for removal occurring or existing before or after House-passed
H.R. 418’s enactment.
Consequences of Terror-Related Activities on Eligibility for
Relief from Removal
An alien found to have engaged in terror-related activities is not only
inadmissible and potentially deportable, but is also ineligible for various forms of
relief from removal. In modifying the terror-related grounds for inadmissibility and
deportability, House-passed H.R. 418 would also affect certain aliens’ eligibility for
relief from removal. Specifically, House-passed H.R. 418 would expand the scope
of aliens who were ineligible for asylum, withholding of removal, and cancellation
of removal.
Asylum. Asylum is a discretionary form of relief from removal available to
aliens in the U.S. who have a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
Aliens who have been admitted into the U.S. or who entered surreptitiously are
generally in the posture of potentially “deportable” aliens and removable under
grounds for deportation. Aliens otherwise present in the U.S. — “paroled” aliens and
aliens presently arriving at an airport or other port of entry, for example — are in the
posture of potentially “inadmissible” aliens and removable under the grounds for
inadmissibility.
Aliens engaged in terrorist activity are ineligible for asylum, as are aliens who
fall under most other terrorism provisions. Mere membership in a terrorist
organization is perhaps the most notable exception to this automatic disqualification.
House-passed H.R. 418 would preserve this exception for inadmissible aliens, but as
explained below, it might, as presently drafted, deny this exemption to deportable
aliens. Other changes in current law also might result due to changes in
cross-references and section numbering arising from House-passed H.R. 418.

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Current Restrictions on Asylum Eligibility for Aliens Deportable on
Terror-Related Grounds. Presently, a deportable alien is ineligible for asylum
relief on terror-related grounds if he is “removable under [INA] § 237(a)(4)(B)
(relating to terrorist activity).” Presently, an alien is removable under § 237(a)(4)(B)
only if he commits certain actions defined as “engaging in terrorist activity” under
INA § 212(a)(3)(B)(iv). As previously mentioned, “engaging in terrorist activity” is
only one of several terror-related grounds under which an alien may be deemed
inadmissible.
House-passed H.R. 418’s Effects upon Asylum Eligibility
Restrictions for Aliens Deportable on Terror-Related Grounds. INA §
208(b)(2)(A)(v) currently makes ineligible for asylum any alien who is (1)
inadmissible on specified terrorism grounds (those terror-related grounds for
inadmissibility provided under subclause (I), (II), (III), (IV), and (VI) of INA § 212
(a)(3)(B)(i)) or (2) deportable under INA § 237(a)(4)(B) (relating to terrorist
activity). With regard to (2), House-passed H.R. 418 would amend INA §
237(a)(4)(B), so that a deportable alien would not only be deportable for engaging
in terrorist activity, but also for committing terror-related activity that would make
the alien inadmissible under INA § 212 — including those activities that do not make
an alien who is inadmissible on terror-related grounds ineligible for asylum.
Accordingly, if enacted in its present form, House-passed H.R. 418 would appear to
create a disparity in asylum eligibility, under which an alien designated as
inadmissible on account of certain terror-related activities, would be eligible for
asylum relief, while an alien who was deportable on the same grounds would be
ineligible.
Pursuant to amendments made by House-passed H.R. 418, which do not directly
alter the INA’s asylum eligibility provisions but do make the terror-related grounds
for deportability the same as those for inadmissibility, a deportable alien would be
ineligible for asylum on terror-related grounds if:
! the alien has engaged in a terrorist activity;
! a consular officer, the Attorney General, or the Secretary of
Homeland Security knows, or has reasonable ground to believe, that
the alien is engaged in or is likely to engage after entry in any
terrorist activity;
! the alien has, under circumstances indicating an intention to cause
death or serious bodily harm, incited terrorist activity;
! the alien is a representative of a terrorist organization, or a political,
social or other similar group that endorses or espouses terrorist
activity;
! the alien is an officer, official, representative, or spokesman of the
PLO;
! the alien is a member of a group designated as a terrorist
organization by the United States;
! the alien is a member of a group of two or more individuals, whether
organized or not, that engages in, or has a subgroup that engages in
a terrorist activity, unless the alien can demonstrate by clear and
convincing evidence that the alien did not know, and should not

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reasonably have known, that the organization was a terrorist
organization;
! the alien endorses or espouses terrorist activity or persuades others
to endorse or espouse terrorist activity or support a terrorist
organization (possibly including an organization that the alien does
not know has engaged in terrorist activities, but nevertheless meets
the INA’s definition of “terrorist organization”);
! the alien has received military-type training from or on behalf of any
organization that, at the time the training was received, was a
terrorist organization (possibly including an organization that the
alien does not know to engage in terrorist activities, but nevertheless
meets the INA’s definition of “terrorist organization”);
! a spouse or child of an alien who is inadmissible on terror-related
grounds, if the activity causing the alien to be found inadmissible
occurred within the last five years, unless the spouse or child (1) did
not and should not have reasonably known about the terrorist
activity or (2) in the reasonable belief of the consular officer or
Attorney General, has renounced the terror-related activity causing
the alien to be found inadmissible; or
! the Secretary of State, after consultation with the Attorney General,
or the Attorney General, after consultation with the Secretary of
State, determines that the alien has been associated with a terrorist
organization and intends while in the United States to engage solely,
principally, or incidentally in activities that could endanger the
welfare, safety, or security of the United States.110
Current Restrictions on Asylum Eligibility for Aliens Inadmissible
on Terror-Related Grounds. Pursuant to INA § 208(b)(2)(A)(v), an inadmissible
alien is ineligible for asylum only if the alien “is inadmissible under subclause (I),
(II), (III), (IV), or (VI) of [INA] § 212(a)(3)(B)(i).” Under current law, an
inadmissible alien would be denied eligibility on terror-related grounds if:
! he has engaged in a terrorist activity (subclause I);
! a consular officer or the Attorney General knows, or has reasonable
ground to believe, that the alien is engaged in or is likely to engage
after entry in any terrorist activity (subclause II);
! the alien has incited terrorist activity, under circumstances indicating
an intention to cause death or serious bodily harm (subclause III);
! the alien is a representative of a foreign terrorist organization
designated by the Secretary of State under INA § 219 or a political,
social or other similar group whose public endorsement of acts of
terrorist activity the Secretary of State has determined undermines
United States efforts to reduce or eliminate terrorist activities, unless
the Attorney General determines, in the Attorney General’s
discretion, that there are not reasonable grounds for regarding the
110 Id. §§ 103(a) (proposing amendments to the terror-related grounds for inadmissibility
found in INA § 212(a)(B)(i)), 104(a); INA § 212(a)(3)(F), 8 U.S.C. § 1182(a)(3)(F).

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alien as a danger to the security of the United States (subclause
IV);111 or
! the alien has used the alien’s position of prominence within any
country to endorse or espouse terrorist activity, or to persuade others
to support terrorist activity or a terrorist organization, in a way that
the Secretary of State has determined undermines United States
efforts to reduce or eliminate terrorist activities (subclause VI).112
Changes to Asylum Eligibility for Inadmissible Aliens Made by
House-passed H.R. 418. INA § 208(b)(2)(A)(v) makes ineligible for asylum any
alien who “is inadmissible under subclause (I), (II), (III), (IV), or (VI) of [INA] §
212(a)(3)(B)(i)” (terror-related grounds for alien inadmissibility). As discussed
previously, § 103(a) of House-passed H.R. 418 would significantly modify INA §
212(a)(3)(B)(i) by amending and rearranging the terror-related grounds for
inadmissibility found in INA § 212(a)(3)(B)(i). For example, whereas under current
law subclause (VI) of INA § 212(a)(3)(B)(i) makes inadmissible (and also ineligible
for asylum, when as referenced by INA § 208(b)(2)(A)(v)) any alien who has used
his position of prominence to endorse or espouse terrorist activity, pursuant to the
amendments made by House-passed H.R. 418, subclause (VI) would instead describe
the inadmissibility ground for aliens who are members of non-designated terrorist
organizations (espousal of terrorist activity would still be a ground for
inadmissibility, but would now be found in subclause (VII) of INA §
212(a)(3)(B)(i)). By rearranging and amending the INA provisions relating to the
terror-related grounds for inadmissibility, House-passed H.R. 418 would affect the
scope of the terror-related grounds for asylum ineligibility that refer to those
amended provisions.
If House-passed H.R. 418 is enacted in its current form, asylum eligibility would
continue to be denied only those aliens who are inadmissible under subclause (I), (II),
(III), (IV), or (VI) of INA § 212(a)(3)(B). Pursuant to the amendments proposed by
House-passed H.R. 418 to the terror-related grounds for inadmissibility, which
amend and rearrange the terror-related grounds for inadmissibility described in INA
§ 212(a)(3)(B), an inadmissible alien would be denied asylum on terror-related
grounds if:
! the alien has engaged in a terrorist activity (subclause I, as
amended);
! a consular officer, the Attorney General, or the Secretary of
Homeland Security knows, or has reasonable ground to believe, that
the alien is engaged in or is likely to engage after entry in any
terrorist activity (subclause II, as amended);
111 This exception exists because of the express language of INA § 208(b)(2)(v), which
provides that an alien is ineligible for asylum if “the alien is inadmissible under subclause
(I), (II), (III), (IV), or (VI) of [INA] § 212(a)(3)(B)(i)...unless, in the case only of an alien
inadmissible under subclause (IV)...the Attorney General determines, in the Attorney
General’s discretion, that there are not reasonable grounds for regarding the alien as a
danger to the security of the United States.”
112 INA § 208(b)(2)(A)(v); 8 U.S.C. § 1158(b)(2)(A)(v).

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! the alien has, under circumstances indicating an intention to cause
death or serious bodily harm, incited terrorist activity (subclause III,
as amended);
! the alien is a representative of a terrorist organization, or a political,
social or other similar group that endorses or espouses terrorist
activity, unless the Attorney General determines, in the Attorney
General’s discretion, that there are not reasonable grounds for
regarding the alien as a danger to the security of the United States
(subclause IV, as amended); or
! the alien is a member of non-designated terrorist organization,
whether organized or not, which engages in, or has a subgroup
which engages in a terrorist activity, unless the alien can
demonstrate by clear and convincing evidence that the alien did not
know, and should not reasonably have known, that the organization
was a terrorist organization (subclause VI, as amended).113
Because of the manner in which House-passed H.R. 418 would amend the INA
provision concerning the terror-related grounds for inadmissibility, an inadmissible
alien would no longer be automatically ineligible for asylum if he has used a position
of prominence to endorse or espouse terrorist activity (although, as discussed
previously, a deportable alien would be ineligible for asylum on such grounds).114
On the other hand, membership in a non-designated terrorist organization would
automatically deny an alien eligibility for asylum relief, unless the alien could
demonstrate by clear and convincing evidence that the alien did not know, and
should not reasonably have known, that the organization was a terrorist organization.
Withholding of Removal. Apart from asylum is the separate remedy of
withholding of removal. Like asylum, withholding of removal is premised upon a
showing of prospective persecution of an alien if removed to a particular country.115
In certain circumstances, aliens are ineligible for withholding of removal, including
in cases where the Attorney General decides:
! that having been convicted by a final judgment of a particularly
serious crime, an alien is a danger to the community of the United
States;
! 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
! that there are reasonable grounds to believe that the alien is a danger
to the security of the United States.116
113 See H.R. 418 § 103(amending the terror-related grounds for inadmissibility and the INA’s
definition of “terrorist organization” and “engage in terrorist activity”).
114 Compare INA § 212(a)(3)(B)(i)(VI) with H.R. 418 § 103(a) (as passed the House)
(amending and rearranging the terror-related grounds for inadmissibility).
115 See INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). See also 8 C.F.R. § 208.16.
116 INA § 241(b)(3)(B); 8 U.S.C. § 1231(b)(3)(B).

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By statute, an alien who is described in INA § 237(a)(4)(B) (i.e., is engaged or
has engaged in terrorist activity) is reasonably regarded as a danger to the security of
the United States, and is therefore ineligible for withholding of removal.117
Current Restrictions on Withholding of Removal Eligibility for
Aliens Deportable on Terror-Related Grounds. Presently, an alien lawfully
admitted into the United States is ineligible for withholding of removal on
terror-related grounds only if he is deportable under INA § 237(a)(4)(B), which
makes an alien deportable if he is “engaged in terrorist activity,” as defined under
INA § 212(a)(3)(B)(iv).
House-passed H.R. 418’s Effects upon Withholding of Removal
Eligibility for Aliens Deportable on Terror-Related Grounds. House-
passed H.R. 418 would amend INA § 237(a)(4)(B) to make an alien deportable on
the same terror-related grounds that make an alien inadmissible. Because House-
passed H.R. 418 does not modify the present wording of the INA’s withholding of
removal eligibility requirements, an alien who is removable pursuant to any of the
expanded, terror-related grounds for deportability would also be ineligible for
withholding of removal.
Current Restrictions on Withholding of Removal Eligibility for
Aliens Inadmissible on Terror-Related Grounds. The INA does not specify
that aliens who are inadmissible on terror-related grounds are automatically ineligible
for withholding of removal, though they might nevertheless fulfill the criteria for
relief ineligibility. Currently, for example, an alien who is deportable on the grounds
that he has engaged in terrorist activity is ineligible for withholding of removal on
account of the danger he likely poses to the United States.118 An alien who is
inadmissible on account of engaging in terrorist activity would be ineligible for
withholding of removal for the same reason.
House-passed H.R. 418’s Effects upon Withholding of Removal
Eligibility for Aliens Inadmissible on Terror-Related Grounds. House-
passed H.R. 418 would appear to make aliens who are inadmissible on terror-related
grounds ineligible for withholding of removal. INA § 241(b)(3) provides that an
alien who is described by INA § 237(a)(3)(B) is ineligible for withholding of
removal. House-passed H.R. 418 amends § 237(a)(3)(B) to cover any alien who
would be considered inadmissible on terror-related grounds.119 Accordingly, it would
appear that if House-passed H.R. 418 was enacted, an alien who is inadmissible on
terror-related grounds would also be ineligible for withholding of removal.
Cancellation of Removal. The INA provides the Attorney General with the
discretionary authority to cancel the removal of certain permanent and nonpermanent
residents. However, aliens who are inadmissible or deportable on account of terror-
related activity are ineligible for such relief.
117 Id.
118 Id.
119 H.R. 418, § 104(a)(1) (as passed the House).

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Current Restrictions on Cancellation of Removal Eligibility for
Aliens Deportable on Terror-Related Grounds. An alien is ineligible for
cancellation of removal if he is deportable under INA § 237(a)(4).120 Presently, the
only terror-related grounds under which an alien would be expressly ineligible for
cancellation of removal would be if the alien either engaged in terrorist activity, as
defined by INA § 212(a)(3)(B)(iv) or received military-type training from or on
behalf of a designated terrorist organization.121
House-passed H.R. 418’s Effects upon Cancellation of Removal
Eligibility for Aliens Deportable on Terror-Related Grounds. House-
passed H.R. 418 would amend INA § 237(a)(4)(B) so that any alien who would be
considered inadmissible on terror-related grounds (as amended by House-passed H.R.
418) would also be deportable, significantly increasing the terror-related grounds that
may disqualify a deportable alien from having his removal canceled.
Current Restrictions on Cancellation of Removal Eligibility for
Aliens Inadmissible on Terror-Related Grounds. An alien is ineligible for
cancellation of removal if he is inadmissible under INA § 212(a)(3), which contains
both security and terror-related grounds for inadmissibility.
House-passed H.R. 418’s Effects upon Cancellation of Removal
Eligibility for Aliens Inadmissible on Terror-Related Grounds. As
discussed previously, House-passed H.R. 418 would amend INA § 212(a)(3)(B)(i)
to broaden the terror-related grounds for inadmissibility. Accordingly, the category
of inadmissible aliens who would be ineligible for cancellation of removal on terror-
related grounds would be expanded.
VI. Improved Security for Drivers’ Licenses and
Personal Identification Cards 122
Prior to the passage of the Intelligence Reform and Terrorism Prevention Act
of 2004, standards with respect to drivers’ licenses and personal identification cards
were determined on a state-by-state basis with no national standards in place.123 Even
120 INA § 240A(c)(4); 8 U.S.C. § 1229b(c)(4).
121 See INA § 237(a)(4); 8 U.S.C. § 1227(a)(4). A deportable alien involved in terror-related
activity might nevertheless be ineligible for cancellation of removal on security or foreign
policy grounds. See INA §§ 237(a)(4)(A), (C); 8 U.S.C. §§ 1227(a)(4)(A), (C).
122 Discussion of this topic was prepared by Todd B. Tatelman, Legislative Attorney.
123 Congressional action prior to 9/11 on national standards in this direction proved highly
controversial. For example, § 656 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (P.L.104-208, Division C) provided federal standards for state
drivers’ licenses and birth certificates when used as identification-related documents for
federal purposes. A state had two choices under this provision. It could require that each of
its licenses include the licensee’s Social Security number in machine-readable or visually-
readable form. Or the state could more minimally require that each applicant submit the
applicant’s Social Security number and verify the legitimacy of that number with the Social
(continued...)

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with the passage of the Intelligence Reform and Terrorism Prevention Act of 2004,
it appears that, with the exception of what is specifically provided for by the
legislation, a majority of the standards remain at the discretion of state and local
governments.124
House-passed H.R. 418 contains a number of provisions relating to improved
security for drivers’ licenses and personal identification cards, as well as instructions
for states that do not comply with its provisions. House-passed H.R. 418 would also
repeal certain overlapping and potentially conflicting provisions of the Intelligence
Reform and Terrorism Prevention Act of 2004.
Current Law. The Intelligence Reform and Terrorism Prevention Act of 2004
delegates authority to the Secretary of Transportation, in consultation with the
Secretary of Homeland Security, empowering them to issue regulations with respect
to minimum standards for federal acceptance of drivers’ licenses and personal
identification cards.125
The new law requires that the Secretary issue regulations within 18 months of
enactment that require each driver’s license or identification card, to be accepted for
any official purpose by a federal agency, to include the individual’s: (1) full legal
name; (2) date of birth; (3) gender; (4) driver’s license or identification card number;
(5) digital photograph; (6) address; and (7) signature.126 In addition, the cards are
required to contain physical security features designed to prevent tampering,
counterfeiting or duplication for fraudulent purposes; as well as a common machine-
123 (...continued)
Security Administration. However, this section became subject to widespread public
criticism shortly after its enactment, with opponents most frequently alleging that it could
be construed as a step toward a national identification card system. Congress blocked funds
to implement regulations aimed at assisting the states to adopt the Social Security number
requirements, and the underlying requirement itself was subsequently repealed in § 355 of
the Department of Transportation and Related Agencies Appropriations Act 2000 (P.L. 106-
69). Prior to 9/11, legislation aimed at discouraging national standards for identification
documents had gained bipartisan support and was thought likely to pass.
124 P.L. 108-458 §§ 7211-7214.
125 See P.L. 108-458, § 7212. Whether limiting the standards to federal acceptance - as
opposed to direct federal prescriptions on the states - obviates federalism concerns under
Supreme Court jurisprudence, remains to be seen. The Court has held that in exercising its
power under the Commerce Clause, Congress may not “commandeer” the state regulatory
processes by ordering states to enact or administer a federal regulatory program. See New
York v United States, 505 U.S. 144 (1992). The Court has extended this principle by
holding, in Printz v. United States, that Congress may not circumvent the prohibition on
commandeering a state’s regulatory processes “by conscripting the State’s officers directly.”
Printz v. United States, 521 U.S. 898, 935 (1997). It may be possible to argue that, because
the issuance of drivers’ licenses remains a state regulatory function, the minimum issuance
and verification requirements established in this bill, even if limited to federal agency
acceptance, constitute an effective commandeering by Congress of the state regulatory
process, or a conscription of the state and local officials who issue the licenses.
126 P.L. 108-458, § 7212(b)(2)(D)(i)-(vii).

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readable technology with defined minimum elements.127 Moreover, states will be
required, pursuant to the new regulations, to confiscate a driver’s license or personal
identification card if any of the above security components is compromised.128
The statute also requires that the regulations address how drivers’ licences and
identification cards are issued by the states. Specifically, the regulations are required
to include minimum standards for the documentation required by the applicant, the
procedures utilized for verifying the documents used, and the standards for
processing the applications.129 The regulations are, however, prohibited from not
only infringing upon the “State’s power to set criteria concerning what categories of
individuals are eligible to obtain a driver’s license or personal identification card
from that State,”130 but also from requiring a state to take an action that “conflicts
with or otherwise interferes with the full enforcement of state criteria concerning the
categories of individuals that are eligible to obtain a driver’s license or personal
identification card.”131 In other words, it would appear that if a state grants a certain
category of individuals (i.e., aliens, legal or illegal) permission to obtain a license,
nothing in the forthcoming regulations is to infringe on that state’s decision or its
ability to enforce that decision. In addition, the regulations are also not to require a
single uniform design, and must include procedures designed to protect the privacy
rights of individual applicants.132
Finally, the law requires the use of negotiated rulemaking pursuant to the
Administrative Procedure Act.133 This process is designed to bring together agency
representatives and concerned interest groups to negotiate the text of a proposed rule.
The rulemaking committee is required to include representatives from: (1) state and
local offices that issue drivers’ licenses and/or personal identification cards; (2) state
elected officials; (3) Department of Homeland Security; and (4) interested parties.134
Changes Proposed by House-passed H.R. 418. In general, the
provisions of House-passed H.R. 418 appear to effectively (though not explicitly)
preempt state and local laws and regulations regarding drivers’ licenses and personal
identification cards in favor of specific national standards established by statute and
forthcoming corresponding regulations.135 In addition, House-passed H.R. 418
127 Id. at § 7212(b)(2)(E)-(F).
128 Id. at § 7212(b)(2)(G).
129 Id. at § 7212(b)(2)(A)-(C).
130 Id. at § 7212(b)(3)(B).
131 Id. at § 7212(b)(3)(C).
132 P.L. 108-458, § 7212(b)(3)(D)-(E).
133 See Negotiated Rulemaking Act of 1990, P.L. 101-648, 104 Stat. 4970 (1990) (codified
as amended at 5 U.S.C. §§ 581 et seq.).
134 See P.L. 108-458, § 7212(b)(4)(A)-(B).
135 Although House-passed H.R. 418 does not directly impose federal standards with respect
to states’ issuance of drivers’ licenses and personal identification cards, states would
(continued...)

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contains a provision that specifically repeals the recently enacted § 7212 of the
Intelligence Reform and Terrorism Prevention Act of 2004, which contains the
current law with respect to national standards for drivers’ licenses and personal
identification cards.
Minimum Issuance Standards. Section 202(c) of House-passed H.R. 418
would establish minimum issuance standards for federal recognition requiring that
before a state could issue a driver’s license or photo identification card, a state would
have to verify with the issuing agency, the issuance, validity and completeness of: (1)
a photo identification document or a non-photo document containing both the
individual’s full legal name and date of birth; (2) date of birth; (3) proof of a social
security number (SSN) or verification of the individual’s ineligibility for a SSN; and
(4) name and address of the individual’s principal residence. To the extent that
information verification requirements exist, they are currently a function of state law
and likely vary from state to state. This provision would appear to preempt any state
verification standards and replace them with the new federal standards as established
by this statutory language.
Evidence of Legal Status. Section 202(c)(2)(B) of House-passed H.R. 418
appears to require states to verify an applicant’s legal status in the United States
before issuing a driver’s license or personal identification card.136 Currently, the
categories of persons eligible for drivers’ licenses are determined on a state-by-state
basis. As indicated above, the Intelligence Reform and Terrorist Prevention Act of
2004 specifically prevents the Secretary of Transportation from enacting regulations
that would interfere with this authority. If enacted, this section of House-passed H.R.
418 would appear to preempt any state law requirements and appears to require the
states to verify the legal status of the applicant.137
Temporary Drivers’ Licenses and Identification Cards. Section
202(c)(2)(C) of House-passed H.R. 418 establishes a system of temporary licenses
and identification cards that can be issued by the states to applicants who can present
135 (...continued)
nevertheless appear to need to adopt such standards and modify any conflicting laws or
regulations in order for such documents to be recognized by federal agencies for official
purposes.
136 House-passed H.R. 418 would require a state, before issuing a driver’s license or
identification card to a person, to require a person to present valid documentary evidence
that he or she is either a U.S. citizen or an alien legally present in the United States. Omitted
from these provisions are requirements relating to the issuance of identification cards to
persons who are not U.S. citizens but are nonetheless U.S. nationals (i.e., most residents of
American Samoa or Swain’s Island). See INA § 101(a)(22); 8 U.S.C. § 1101(a)(22)
(defining a U.S. national as a U.S. citizen or “a person who, though not a citizen of the
United States, owes permanent allegiance to the United States”).
137 For more information relating to current state laws regarding the issuance of drivers’
licenses to aliens see CRS Report RL32127, Summary of State Laws on the Issuance of
Driver’s Licenses to Undocumented Aliens, by Allison M. Smith.

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evidence that they fall into one of six categories.138 Under House-passed H.R. 418,
a state may only issue a temporary driver’s license or identification card with an
expiration date equal to the period of time of the applicant’s authorized stay in the
United States. If there is an indefinite end to the period of authorized stay, the card’s
expiration date shall be one year. The temporary card shall clearly indicate that it is
temporary and shall state the expiration date. Renewals of the temporary cards would
be done only upon presentation of valid documentary evidence that the status had
been extended by the Secretary of Homeland Security. If such provisions exist under
current law, they exist as a function of state law and would be preempted should
House-passed H.R. 418 get enacted.
Other Requirements. Pursuant to § 202(d) of House-passed H.R. 418, states
are required to adopt procedures and practices to: (1) employ technology to capture
digital images of identity source documents; (2) retain paper copies of source
documents for a minimum of seven years or images of source documents presented
for a minimum of ten years; (3) subject each applicant to a mandatory facial image
capture; (4) confirm or verify a renewing applicant’s information; (5) confirm with
the Social Security Administration a SSN presented by a person using the full Social
Security account number;139 (6) refuse issuance of a driver’s license or identification
card to a person holding a driver’s license issued by another state without
confirmation that the person is terminating or has terminated the driver’s license; (7)
ensure the physical security of locations where cards are produced and the security
of document materials and papers from which drivers’ licenses and identification
cards are produced; (8) subject all persons authorized to manufacture or produce
drivers’ licenses and identification cards to appropriate security clearance
requirements; (9) establish fraudulent document recognition training programs for
appropriate employees engaged in the issuance of drivers’ licenses and identification
cards; (10) would limit the length of time a drivers’ license or personal identification
card is valid to eight years. To the extent that any of these requirements currently
exist, they do so as a function of state law. Thus, should House-passed H.R. 418 be
enacted, it would appear that the state laws would be preempted in favor of the new
federal standards.
Linking of Databases. Section 203 of House-passed H.R. 418 provides that
for a state to be eligible for any grant funding or other available federal assistance
under this title it must participate in the Interstate Drivers’ License Compact “to
provide electronic access by a State to information contained in the motor vehicle
138 According to House-passed H.R. 418, persons would only be eligible for temporary
drivers’ licenses or identification cards if evidence is presented that they: (1) have a valid,
unexpired non-immigrant visa or non-immigrant visa status for entry into the United States;
(2) have a pending or approved application for asylum in the United States; (3) have entered
into the United States in refugee status; (4) have a pending or approved application for
temporary protected status in the United States; (5) have approved deferred action status;
or (6) have a pending application for adjustment of status to that of an alien lawfully
admitted for permanent residence in the United States or conditional permanent resident
status in the United States.
139 In the event that a SSN is already registered to or associated with another person to which
any state has issued a driver’s license or identification card, the state shall resolve the
discrepancy and take appropriate action.

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databases of all other States.” In addition, House-passed H.R. 418 requires that all
motor vehicle databases are to contain, at a minimum, all of the data printed on a
state driver’s license and all motor vehicle histories including moving violations,
suspensions and points on licenses. Currently, the Interstate Drivers License
Compact requires member states to report tickets received by a motorist to the state
where he received a license to drive so that the driver receives the required points on
his license. Also, when a state suspends the license of a driver who is from out-of-
state, the state where the motorist received a license to drive will also suspend the
license. The compact operates as a function of state law and has been approved by
Congress pursuant to the Interstate Compacts Clause.140 It appears that 46 states and
the District of Columbia are currently members of the compact and therefore would
remain eligible for federal grant money.141
Trafficking in Authentication Features for Use in False
Identification Documents. Section 204 of House-passed H.R. 418 amends 18
U.S.C. § 1028(a)(8), which makes it a federal crime to either actually, or with the
intent to, transport, transfer, or otherwise dispose of to another, materials or
features142 used on a document of the type intended or commonly used for
identification purposes. By replacing the phrase “false identification features” with
“false or actual authentication features,” this provision would appear to broaden the
scope of the criminal provision, making it a crime to traffic in identification features
regardless of whether the feature is false.143 In addition, section 204 requires that the
Secretary of Homeland Security enter into the appropriate aviation screening
database the personal information of anyone convicted of using a false driver’s
license at an airport.144
VII. Improving Border Infrastructure and Technology Integration145
Title III of House-passed House-passed H.R. 418 is directed at improving
border infrastructure and technology integration between state and federal
agencies.146 It would require DHS to conduct a study on U.S. border security
vulnerabilities, establish a pilot program to test ground surveillance technologies on
140 See U.S. CONST. Art. 1 § 8, cl. 10 (stating that “[n]o state shall, without the consent of
Congress, ... enter into any agreement or compact with another state, or with a foreign
power...”).
141 Georgia, Kentucky, Michigan, and Wisconsin appear to be the only four states that are
not currently members of the compact. See American Association of Motor Vehicle
Administrators, available at [http://www.aamva.org/drivers/drv_compactsDLC.asp].
142 These include, but are not limited to, holograms, watermarks, symbols, codes, images,
or sequences. See 18 U.S.C. § 1028(d)(1) (2004).
143 For additional background on federal law criminalizing identification document fraud,
see CRS Report RL32657, Immigration-Related Document Fraud: Overview of Civil,
Criminal, and Immigration Consequences, by Michael John Garcia, at 4-8.
144 This provision concerning the entering of information into appropriate aviation screening
databases was added to H.R. 418 pursuant to an amendment offered by Rep. Michael Castle.
145 Discussion of this topic was prepared by Michael John Garcia, Legislative Attorney.
146 Title III was added to H.R. 418 pursuant to an amendment offered by Rep. James Kolbe.

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the northern and southern borders to enhance U.S. border security, and implement a
plan to improve communications systems and information-sharing between federal,
state, local, and tribal agencies on matters relating to border security. DHS would
also be required to submit reports to Congress regarding its implementation of these
requirements.

Vulnerability and Threat Assessment Relating to Border
Infrastructure Weaknesses
Section 301 of House-passed H.R. 418 requires the Under Secretary of
Homeland Security for Border and Transportation Security, in consultation with the
Under Secretary of Homeland Security for Science and Technology and the Under
Secretary of Homeland Security for Information Analysis and Infrastructure
Protection, to study the technology, equipment, and personnel needed by field offices
of the Bureau of Customs and Border Protection to address security vulnerabilities
within the United States, and conduct a follow-up study at least once every five years
thereafter. The Under Secretary of Homeland Security for Border and Transportation
Security is required to submit a report to Congress of findings and conclusions from
each study, along with legislative recommendations for addressing security
vulnerabilities. Section 301(c) authorizes necessary appropriations for fiscal years
2006 through 2011 to carry out recommendations from the first study.
Establishment of a Ground Surveillance Pilot Program
The U.S. borders with Mexico and Canada are monitored in a variety of ways,
including through the use of border patrol agents, video cameras, ground sensors, and
aircraft.147 Pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004,
a pilot program was established to test various advanced technologies — including
sensors, video, and unmanned aerial vehicles — to improve surveillance along U.S.-
Canadian border.148 Section 302 of House-passed H.R. 418 requires the Department
of Homeland Security to establish a pilot program to identify and test ground
surveillance technologies to enhance border security. The program would cover both
northern and southern border locations. House-passed H.R. 418 also requires DHS
to submit a report to designated House and Senate committees within a year of
program implementation describing the program and recommending whether it
should terminate, be made permanent, or be enhanced.
Enhancement of Border Communications Integration and
Information Sharing
Section 303 of House-passed H.R. 418 requires the Secretary of Homeland
Security, in consultation with various federal, state, local, and tribal agencies, to
147 For additional background on border surveillance, see CRS Report RL32562, Border
Security: The Role of the U.S. Border Patrol, by Blas Nunez-Neto; and CRS Report
RS21698, Homeland Security: Unmanned Aerial Vehicles and Border Surveillance, by
Christopher Bolkcom.
148 P.L. 108-458, §§ 5101-5105.

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develop and implement a plan to improve interagency communication systems and
enhance information-sharing on matters related to border security on the federal,
state, local, and tribal level. DHS would submit a report to designated House and
Senate committees within a year of plan implementation which would include any
recommendations that the Secretary of Homeland Security found appropriate.

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