Border Zone Reasonableness Restoration Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 3852 To provide oversight of the border zone in which Federal agents may conduct vehicle checkpoints and stops and enter private land without a warrant, and to make technical corrections. IN THE HOUSE OF REPRESENTATIVES JULY 18, 2019 Mr. WELCH (for himself, Ms. PINGREE, Mrs. KIRKPATRICK, Mr. MCGOVERN, Ms. JAYAPAL, and Ms. KUSTER of New Hampshire) introduced the fol- lowing bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee con- cerned A BILL To provide oversight of the border zone in which Federal agents may conduct vehicle checkpoints and stops and enter private land without a warrant, and to make tech- nical corrections. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Border Zone Reason- 4 ableness Restoration Act of 2019’’. 5 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 2 •HR 3852 IH SEC. 2. OVERSIGHT OF POWER TO ENTER PRIVATE LAND 1 AND STOP VEHICLES WITHOUT A WARRANT. 2 (a) IN GENERAL.—Section 287(a) of the Immigra- 3 tion and Nationality Act (8 U.S.C. 1357(a)) is amended— 4 (1) in paragraph (5), by redesignating subpara- 5 graphs (A) and (B) as clauses (i) and (ii), respec- 6 tively; 7 (2) by redesignating paragraphs (1) through 8 (3) as subparagraphs (A) through (C), respectively; 9 (3) by redesignating paragraphs (4) and (5) as 10 subparagraphs (E) and (F), respectively; 11 (4) in the matter preceding subparagraph (A), 12 as redesignated— 13 (A) by inserting ‘‘(1)’’ before ‘‘Any offi- 14 cer’’; 15 (B) by striking ‘‘Service’’ and inserting 16 ‘‘Department of Homeland Security’’; 17 (C) by striking ‘‘Attorney General’’ and in- 18 serting ‘‘Secretary of Homeland Security’’; and 19 (D) by inserting ‘‘, to the extent permitted 20 by the Fourth Amendment to the Constitution 21 of the United States’’ after ‘‘warrant’’; 22 (5) in paragraph (1), as redesignated, by strik- 23 ing subparagraph (C), as redesignated, and inserting 24 the following: 25 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 3 •HR 3852 IH ‘‘(C) within a distance of 25 miles from any ex- 1 ternal boundary of the United States, or such dis- 2 tance as may be prescribed by the Secretary pursu- 3 ant to paragraph (2), to board and search for aliens 4 any vessel within the territorial waters of the United 5 States and any railway car, aircraft, conveyance, or 6 vehicle for the purpose of patrolling the border to 7 prevent the illegal entry of aliens into the United 8 States, provided that— 9 ‘‘(i) no vehicle may be stopped at a perma- 10 nent or temporary checkpoint under this sub- 11 paragraph beyond a distance of 10 miles from 12 any such external boundary without reasonable 13 suspicion that an individual in such vehicle is 14 inadmissible or otherwise not entitled to enter 15 or remain in the United States; and 16 ‘‘(ii) checkpoint enforcement operations 17 may not use race, ethnicity, gender, national or- 18 igin, religion, sex (including sexual orientation 19 and gender identity) to any degree, except for 20 reliance on the listed characteristics in a spe- 21 cific suspect description; 22 ‘‘(D) within a distance of 10 miles from any 23 such external boundary, or such distance as may be 24 prescribed by the Secretary pursuant to paragraph 25 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 4 •HR 3852 IH (2), to have access to private lands, but not dwell- 1 ings, for the purpose of patrolling the border to pre- 2 vent the illegal entry of aliens into the United 3 States;’’; and 4 (6) by inserting after the flush text following 5 subparagraph (F), as redesignated, the following: 6 ‘‘(2)(A)(i) The Secretary of Homeland Security may 7 establish for a sector or district a distance less than or 8 greater than 25 miles, but in no case greater than 100 9 miles, as the maximum distance from an external bound- 10 ary of the United States in which the authority described 11 in paragraph (1)(C) may be exercised, if the Secretary cer- 12 tifies that such a distance is necessary for the purpose 13 of patrolling the border to prevent the illegal entry of 14 aliens into the United States, and justified by the consid- 15 erations listed in subparagraph (B). 16 ‘‘(ii) The Secretary of Homeland Security may estab- 17 lish for a sector or district a distance less than or greater 18 than 10 miles, but in no case greater than 25 miles, as 19 the maximum distance from an external boundary of the 20 United States in which the authority described in para- 21 graph (1)(D) may be exercised, if the Secretary certifies 22 that such a distance is necessary for the purpose of patrol- 23 ling the border to prevent the illegal entry of aliens into 24 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 5 •HR 3852 IH the United States, and justified by the considerations list- 1 ed in subparagraph (B). 2 ‘‘(B) In making the certifications described in sub- 3 paragraph (A), the Secretary shall consider, as appro- 4 priate, land topography, confluence of arteries of transpor- 5 tation leading from external boundaries, density of popu- 6 lation, possible inconvenience to the traveling public, types 7 of conveyances used, reliable information as to movements 8 of persons effecting illegal entry into the United States, 9 effects on private property and quality of life for relevant 10 communities and residents, consultations with affected 11 State, local, and tribal governments, including the gov- 12 ernor of any relevant State, and other factors that the Sec- 13 retary considers appropriate. 14 ‘‘(C) A certification made under subparagraph (A) 15 shall be valid for a period of 5 years and may be renewed 16 for additional 5-year periods. If the Secretary finds at any 17 time that circumstances no longer justify a certification, 18 the Secretary shall terminate the certification. 19 ‘‘(D)(i) Any person with an interest that is, or may 20 be, adversely affected by the maximum distance limita- 21 tions established pursuant to subparagraph (A) may com- 22 mence a civil action, in the appropriate district court of 23 the United States, against the Secretary of Homeland Se- 24 curity, asserting that a certification under such subpara- 25 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 6 •HR 3852 IH graph is not based on reasonable grounds or otherwise 1 fails to meet the requirements under such subparagraph. 2 ‘‘(ii) The court may enter a judgment or decree 3 against the United States arising from a civil action com- 4 menced under clause (i). 5 ‘‘(iii) Nothing in this subsection may be construed to 6 restrict any right which any person (or class of persons) 7 may have under any statute or under the common law. 8 ‘‘(E) The Secretary shall submit an annual report to 9 the Committee on the Judiciary of the Senate, the Com- 10 mittee on Homeland Security and Governmental Affairs 11 of the Senate, the Committee on the Judiciary of the 12 House of Representatives, and the Committee on Home- 13 land Security of the House of Representatives that identi- 14 fies— 15 ‘‘(i) the number of certifications made under 16 subparagraph (A); 17 ‘‘(ii) for each such certification, the sector or 18 district and reasonable distance prescribed, the pe- 19 riod of time the certification has been in effect, and 20 the factors justifying the certification; and 21 ‘‘(iii) for permanent and temporary check- 22 points— 23 ‘‘(I) the location and duration of each 24 checkpoint; 25 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 7 •HR 3852 IH ‘‘(II) an assessment of each checkpoint’s 1 impacts on local communities, including— 2 ‘‘(aa) how the checkpoint minimizes 3 interference with legitimate traffic and 4 areas of population density; 5 ‘‘(bb) what outreach has taken place 6 with stakeholders; and 7 ‘‘(cc) which law enforcement agencies 8 other than U.S. Customs and Border Pro- 9 tection have participated in checkpoint op- 10 erations; 11 ‘‘(III) arrest and apprehension statistics, 12 broken down by charge; 13 ‘‘(IV) the number of secondary referrals, 14 including average, median and maximum dura- 15 tions and aggregate data, broken down by rea- 16 sons for referral; 17 ‘‘(V) a summary of canine activity at each 18 checkpoint, including— 19 ‘‘(aa) the quantities of drugs detected; 20 ‘‘(bb) the number of persons detected, 21 including how many of those were arrested; 22 ‘‘(cc) the percentage of nonproductive 23 alerts; and 24 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 8 •HR 3852 IH ‘‘(dd) an explanation of current train- 1 ing and certification protocols; and 2 ‘‘(VI) until the recommendations are 3 closed, a status update on the implementation 4 of the Government Accountability Office’s 2009 5 recommendations regarding checkpoints. 6 ‘‘(F) All personally identifiable information about 7 specific individuals shall be redacted from each report re- 8 quired under subparagraph (E), except that aggregate na- 9 tionality and perceived race data shall be reported for 10 checkpoint secondary referrals and arrests described in 11 subclause (III) and (IV) of subparagraph (E)(iii). 12 ‘‘(G) Each report submitted under subparagraph (E) 13 shall be made available to the public, except for specifically 14 identified data if the Secretary— 15 ‘‘(i) explicitly invokes an exemption under para- 16 graphs (1) through (9) of section 552(b) of title 5, 17 United States Code, with respect to such data; and 18 ‘‘(ii) provides a written explanation for the ex- 19 emption’s applicability.’’. 20 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 21 (1) AUTHORITIES WITHOUT A WARRANT.—Sec- 22 tion 287(a) of the Immigration and Nationality Act 23 (8 U.S.C. 1357(a)), the undesignated matter fol- 24 VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS 9 •HR 3852 IH lowing paragraph (2), as added by subsection (a)(5), 1 is amended— 2 (A) by inserting ‘‘(3)’’ before ‘‘Under regu- 3 lations’’; 4 (B) by striking ‘‘paragraph (5)(B)’’ both 5 places that term appears and inserting ‘‘sub- 6 paragraph (F)(ii)’’; 7 (C) by striking ‘‘(i)’’ and inserting ‘‘(A)’’; 8 (D) by striking ‘‘(ii) establish’’ and insert- 9 ing ‘‘(B) establish’’; 10 (E) by striking ‘‘(iii) require’’ and insert- 11 ing ‘‘(C) require’’; and 12 (F) by striking ‘‘clause (ii), and (iv)’’ and 13 inserting ‘‘subparagraph (B), and (D)’’. 14 (2) CONFORMING AMENDMENT.—Section 15 287(e) of such Act (8 U.S.C. 1357(e)) is amended 16 by striking ‘‘paragraph (3) of subsection (a),’’ and 17 inserting ‘‘subsection (a)(1)(D),’’. 18 Æ VerDate Sep 11 2014 04:01 Jul 20, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H3852.IH H3852 kjohnson on DSK79L0C42 with BILLS