Mr. NADLER. Mr. Chairman, I offer an amendment.

The Acting CHAIRMAN. The Clerk will designate the amendment.

The text of the amendment is as follows:

Amendment No. 11 printed in House Report 109-350 offered by Mr. Nadler:

Strike section 407.

The Acting CHAIRMAN. Pursuant to House Resolution 621, the gentleman from New York (Mr. Nadler) and the gentleman from Wisconsin (Mr. Sensenbrenner) each will control 5 minutes.

The Chair recognizes the gentleman from New York.

Mr. NADLER. Mr. Chairman, I yield myself 3 minutes.

Mr. Chairman, my amendment strikes section 407. Section 407 expands the controversial policy of expedited removal, which grants extraordinary power to low-level immigration officers to order deported without any judicial review and without any fair hearing people who arrive at ports of entry without proper documentation.

This section would authorize such unreviewable deportation decisions, again without any real judicial review, for anyone picked up within 100 miles of any U.S. border, not just at ports of entry or near the Mexican border. My amendment would prevent this expansion of expedited removal and limit its use to the present locations.

If the amendment passes, we would still, of course, deport illegal aliens; but people arrested within the U.S. would continue to have the right to some judicial review, some due process before being deported. They would have the right, as they do now, to challenge the decision of the Border Patrol agent.

By imposing expedited removal proceedings on all aliens apprehended within 100 miles of any border, this bill would deny thousands of people all due process rights.

The expedited removal process poses the gravest risks to refugees fleeing human rights abuses. Those fleeing torture, imprisonment or other forms of persecution are often forced to travel without valid documents because there is not enough time to obtain them or because it is too dangerous to apply for them.

Those fleeing persecution or the Gestapo or the KGB or the Savak are least likely to have properly notarized and stamped documents, countersigned by the Gestapo, the KGB or the Savak.

The expansion of the expedited removal process puts refugee women and children fleeing rape, honor killings, female mutilation, forced marriages and sexual slavery particularly at risk because these victims have the most difficulty sharing and explaining their painful stories to border agents who may not be experts in foreign cultures.

Furthermore, when individuals are placed in expedited removal, they do not have access to relief from deportation under the Violence Against Women Act, the temporary protected status or as trafficking victims.

My amendment seeks to prevent the inevitable consequences of deporting more asylum seekers, battered immigrants, trafficking victims and others who may be legally entitled to remain but who have no real opportunity for any appeal from the hasty judgment of the border agent, no due process.

Even as currently applied, expedited removal has resulted in terrible mistakes, including its wrongful application to genuine refugees and even to U.S. citizens. The Senate heard the case of Sharon McKnight, an American citizen from New York of Jamaican descent who suffers a mental disability and was wrongly put into expedited removal and sent to Jamaica because an inspector mistakenly thought her passport was fake.

Expanding this policy to include persons already within the United States poses grave constitutional problems. Immigration laws long made a distinction between those aliens seeking admission to the U.S. and those who are already within the U.S., regardless of the legality of their entry. In Zadvydas v. Davis, the Supreme Court held ``once an alien enters the country, the legal status changes, for the Due Process Clause applies to all `persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.''

Because there is no check or review of expedited removal decisions, there is no due process. This policy should not be expanded. It should be left where it is as my amendment would do.

Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in opposition to this amendment which would strike the provision added by the bill the gentleman from California (Mr. Daniel E. Lungren), mandating expedited removal for other than Mexican aliens apprehended after entering illegally within 14 days and 100 hundred miles of entry.

Unlike what the gentleman from New York (Mr. Nadler) said, the Lungren provision in this bill applies to land borders only, and it would not apply to asylum seekers who ask for asylum at the time they enter through a port of entry.

The provision that this amendment would strike is crucial to ending the current practice of catch and release of aliens along the southern border. While nationals of Mexico who are apprehended along the southern border can be returned to Mexico, the nationals of other countries cannot. Rather these aliens, known as OTMs, must be placed in removal proceedings which is a process that can take months. Because of a lack of detention space, most are released on the promise that they will show up for their adjudication.

Experience has shown that if OTMs are released to attend their removal proceedings, they will likely disappear. Of the 8,908 notices to appear at the immigration court at Harlingen, Texas, issued last year to OTMs, 8,767 failed to show up for their hearings, according to the statistics compiled by the Justice Departments's Executive Office of Immigration Review.

The fact that these aliens were able to enter illegally, be released and then disappear into society has encouraged even more OTMs to illegally enter. Arrests of non-Mexicans along the U.S.-Mexico border, which total 14,935 in 1995 and 28,598 in 2000, rose to 65,814 in fiscal year 2004.

As nationals of these countries have entered with impunity, they have encouraged others to do so also. The Lungren provision addresses the problem of catch and release by requiring DHS to remove these OTMs who are apprehended within 14 days of entry and 100 miles of the border through expedited procedures. This codifies DHS's current practices. By limiting the amount of time that aliens are in proceedings, these procedures allow DHS to use its limited detention space more effectively. This in turn ensures that more aliens can be detained, which discourages other aliens from attempting to enter illegally.

I urge my colleagues to oppose this amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the real question here is due process. We all want to deport illegal aliens. We all want to deport people who are not here legally. But the question is because the Border Control agent thinks that someone may not be here legally, because he thinks that the passport is fake, should there be no appeal? Should there be no ability to show facts? Should there be no due process?

This country is built on due process. This country is built on a foundation of liberty and proper process.

The Department of Homeland Security states that expedited procedures currently cannot be applied to the nearly 1 million aliens who are apprehended annually on the southwest border, where it can legally be applied, as it is not possible to initiate formal removal proceedings against all the aliens.

So you cannot use it in too many of the cases where it is legal now, so let us expand it so we cannot use it in millions of more cases.

Mr. Chairman, I realize that we have to talk about the principle of due process. I also realize that not passing this amendment is going to result in a fiction, the fiction of having this policy where we cannot use it for millions of people. So I am not sure what the practical impact of that will be.

I recognize there is no point to spending more time on this. I wanted to make the point about due process, and I hope the Senate will listen.

Mr. Chairman, I ask unanimous consent to withdraw the amendment.

The Acting CHAIRMAN (Mr. Culberson). Is there objection to the request of the gentleman from New York?

There was no objection.