Commentators Favor Matrícula Consular, But Id Acceptance Encounters Other Roadblocks

IMMIGRATION LAW & POLICY

Congressional Developments

COMMENTATORS FAVOR MATRÍCULA CONSULAR, BUT ID ACCEPTANCE ENCOUNTERS OTHER ROADBLOCKS
Immigrants' Rights Update, Vol. 17, No. 5, September 4, 2003

Nearly 77 percent of those who submitted comments on the U.S. Treasury Dept.'s final rule allowing financial institutions flexibility to decide which documents they would accept as proof of identity said they oppose any changes to the rule. However, the House of Representatives has approved an amendment that would strictly regulate the issuance by foreign governments of consular identification cards to their own citizens residing in the U.S. And Colorado has enacted a law that severely restricts the acceptance of consular ID cards by public entities within the state.

Prompted at least in part by pressure from House Judiciary Committee chairman James Sensenbrenner Jr. (R-WI), the Treasury Dept. had asked for additional comments on the final rule it issued to implement section 326 of the USA PATRIOT Act (see "Acceptance of the Matrícula Consular in the U.S. is Under Attack," IMMIGRANTS' RIGHTS UPDATE, July 15, 2003, p. 3). The department created an unusual mechanism in which those who commented could both vote and submit comments via the department's Web site. A "no" vote meant that banks should continue to be allowed to accept as ID foreign government-issued documents such as the consular ID document (matrícula consular) issued by the Mexican government. However, after the comment period ended on July 31, 2003, the Treasury Dept. announced that it would focus on the substance of written comments rather than on the tally of results from the voting.

Banks and banking associations submitted comments strongly opposing a change in the rules. They argued that the new comment period undermined the credibility of the rulemaking process and that acceptance of consular ID cards helps bring the "unbanked" into the mainstream financial system. Rejection of consular ID cards would deprive the government of regulatory oversight, result in retaliatory measures against U.S. government-issued IDs in other countries, reduce the ability of U.S. banks to attract foreign investment, and encourage unregulated remittance systems, they contended.

Advocates for immigrants, including lawmakers, likewise argued that acceptance of foreign government-issued identification such as a consular ID card helps bring immigrants out of the informal and unregulated economy and into the financial mainstream. Without this, many immigrant workers cannot open a bank account, get loans, or establish a credit history. As a result, they are forced to carry and store large amounts of cash (which makes them vulnerable to crime) and rely on illegal loans; their financial transactions are harder to track and to tax; and they have less of a financial stake in their communities. The cards help the police quickly establish the identity of the people with whom they deal, allowing them to focus resources on crime prevention and community safety. Proof of identity enables immigrants to report crimes and other suspicious behavior without fearing that their lack of acceptable ID makes them suspect or puts them at risk. The acceptance of alternative ID also helps law enforcement combat money laundering and terrorism.

Opponents of the card have portrayed its acceptance by business and government entities, including law enforcement, as a veiled form of immigration amnesty, despite the fact that the card neither confers any legal immigration status on its bearers nor grants them permission to be employed in the U.S. or receive public benefits. The Mexican government has issued consular ID cards to its nationals since 1871. According to the Mexican government, approximately 150 financial institutions, 119 cities, 36 counties, and more than 900 police departments currently accept the card as proof of identity.

It is not clear when the Treasury Dept. will decide whether it will leave the already-published final rule intact or whether it will issue a new final rule. However, before the Treasury Dept.'s "additional comments" period ended on July 31, the House of Representatives voted to approve an amendment to the Foreign Relations Authorization Act of 2004-05, HR 1950, which, if agreed to by the Senate, would impose detailed record-keeping and reporting requirements on any country issuing consular ID cards to persons residing in the U.S. and also would establish specific procedures and requirements that must be met before such cards can be issued. The amendment, which was approved on July 15, was sponsored by Rep. John N. Hostettler (R-IN), who earlier had conducted anti-matrícula consular hearings.

Under the amendment, the issuing foreign government would be required to report to the U.S. State Dept. the name and address of each person residing in the U.S. to whom a card is issued and, upon request, to submit its records to an audit by the U.S. government. The amendment prescribes the kinds of proof of identity that consular ID-issuing governments would be allowed to accept from their citizens applying for such an ID and the manner in which ID-related records would have to be kept. It also would oblige the issuing government to require cardholders to report any change of address within 30 days. The amendment would require the U.S. State Dept. to issue regulations to enforce all these provisions.

The amendment passed by a 226 to 198 margin, largely along partisan lines. Twenty-three Democrats joined 203 Republicans in favor, while 21 Republicans and 176 Democrats opposed the amendment. Passage of the amendment took advocates on both sides of the immigration debate by surprise.

Finally, on May 22, 2003, Governor Bill Owens of Colorado signed legislation that prohibits a public entity (agency, department, board, division, bureau, commission, council, or political subdivision of the state) from accepting an identification document unless it is a document issued by a state or federal jurisdiction or recognized by the U.S. government. The document also must be verifiable by federal or state law enforcement, intelligence, or homeland security agencies. The requirement would not apply to a person reporting a crime; to a public official accepting a crime report, conducting a criminal investigation, accepting an application for services for U.S. citizen children under the Women, Infants and Children (WIC) nutrition program, or providing emergency medical services; to a peace officer in the performance of the officer's duties and within the scope of the officer's employment; or to instances in which federal law mandates acceptance of a document.