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The REAL ID Act of 2005 (H.R. 418), introduced by House Judiciary
Committee Chairman F. James Sensenbrenner Jr. on Jan. 26, 2005, would
forbid federal agencies from accepting “for any official purpose” a
state-issued driver’s license or ID card unless the issuing state
requires that driver’s license or ID applicants present documents that
show that their presence in the United States is lawful.
Other provisions in the bill would allow U.S. government officials to
require that asylum applicants present “corroborating evidence” of their
claims that they are eligible for asylum; would limit the ability of the
federal courts to reverse faulty decisions made by such officials; would
allow the secretary of the Dept. of Homeland Security (DHS) to waive any
environment-protecting or other laws that prevent the construction of
barriers or roads deemed necessary to protect the country’s borders; and
would make it possible for the government to deport lawful permanent
residents for providing any type of support—including humanitarian
financial contributions—to an organization later labeled as “terrorist”
by the government.
The bill’s driver’s license provisions are very
similar to those that were included in the House’s 9/11 Commission
implementation bill, H.R. 10, but dropped from the compromise bill that
members of a House-Senate conference committee approved on Nov. 20 of
last year. Sensenbrenner blocked passage by Congress of the compromise
bill—the Intelligence Reform and Terrorism Prevention Act of 2004—until
he received a promise from House leadership that he could revive some of
the dropped provisions and attach them to the first “must-pass”
legislation to be considered by the 109th Congress. The first such
legislation in this session is likely to be a supplemental
appropriations bill to fund military operations in Iraq and Afghanistan
or a bill to fund relief efforts for the victims of the Dec. 2004
tsunami.
Under the bill’s driver’s license provisions,
federal agencies could accept licenses and ID cards issued by a state
only if the state required each applicant for a license or ID to present
“valid documentary evidence” that he or she
- is a U.S. citizen;
- is a lawful permanent,
conditional permanent, or temporary resident of the U.S., or has a
pending application for adjustment to permanent resident or
conditional permanent resident status;
- has been granted asylum in the
U.S. or admitted into the country as a refugee, or has a pending
application for asylum in the U.S.;
- is in the U.S. on a valid,
unexpired nonimmigrant visa or has “nonimmigrant visa status for
entry into” the U.S.;
- has a pending or approved
application for temporary protected status; or
- has “approved deferred action
status.”
In order to be acceptable by federal agencies,
licenses or IDs issued to applicants for asylum or adjustment of status,
or to persons in the categories listed above in the final three bulleted
items, would have to be “temporary”—i.e., valid only for the amount of
time the person is authorized to stay in the U.S. or, if the period of
authorized stay has no definite end, for one year. Temporary licenses
and IDs would have to indicate clearly that they are temporary and state
their expiration date.
Under H.R. 418’s driver’s license provisions, each
state that wants the licenses or IDs it issues to remain acceptable by
federal agencies would have to enter into a memorandum of understanding
with the secretary of the DHS “to routinely utilize the automated system
known as Systematic Alien Verification for Entitlements . . . to verify
the legal presence status of a person, other than a United States
citizen, applying for a driver’s license or identification card.” The
deadline for entering into such an MOU would be Sept. 11, 2005. States
would also be required to contact the Social Security Administration to
verify Social Security numbers presented by license or ID applicants.
States would have to limit the validity of any
license or ID card they issue to 8 years. The bill also would grant the
DHS secretary the power to “prescribe one or more design formats for
driver’s licenses and identification cards . . . to allow for clear
visual differentiation between categories of driver’s licenses and
identity cards.”
Any license or ID card issued by a state that did
not conform to these and other requirements listed in the bill would
have to state clearly “on its face that it may not be accepted by any
Federal agency for any official purpose,” and its design and color would
have to distinguish it from license and ID documents that federal
agencies would be allowed to accept.
In order to be eligible for the federal money that
they would need to comply with and implement the provisions of this
bill, states would further be required to link their driver’s license/ID
databases with those of other states and of Canada and Mexico, under the
“Driver License Agreement” that the bill references. A
draft of this document is on the
website of the American Association of Motor Vehicle Administrators.
A revised version of it, which is not publicly available, has not yet
been approved by AAMVA members, nor by any state government, nor has the
Agreement ever been vetted or approved by Congress.
More information about H.R. 418, as well as a set
of talking points titled “Why the Federal Government Should Not Place
Immigration Status Restrictions on Driver’s Licenses,” is available at
www.nilc.org.
According to the Jan. 27, 2005, issue of CQ
Today, a daily newsletter that covers Congress, senators such as
Larry E. Craig (R-ID) and John McCain (R-AZ) have said that if the House
attaches the provisions in H.R. 418 to a supplemental appropriations
bill, senators may feel free to attach other, more generous
immigration-related proposals to it or to use consideration of it as an
occasion to begin a long-overdue vigorous debate in Congress on
comprehensive immigration reform. On the other hand, the newsletter
reports that Sensenbrenner has suggested that if the provisions in his
bill are not enacted, any immigration reform proposals initiated by the
Bush administration or fellow members of Congress may become stalled in
the Judiciary Committee he chairs.
The House began debate on the bill on Wed., Feb.
9. On that same day, the White House issued a written statement that
the Bush administration “strongly supports House passage of H.R. 418”
and that it “will work with Congress to,” among other things, “consider
providing authority to the Secretary of Homeland Security to ensure
[that] individuals with licenses or identification cards that do not
meet the full criteria in this bill could not use these documents to
access non-Federal critical infrastructure or to operate certain large
vehicles.”
By
Richard Irwin, IRU editor, with
Joan Friedland, NILC staff
attorney,
and Tyler Moran, NILC
policy analyst
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