IMMIGRATION LAW & POLICY

Congressional Developments

 

 

Immigration provisions a sticking point in attempt to reconcile 9/11 Commission implementation bills; DL provisions also troublesome
 Immigrants' Rights Update, Vol. 18, No. 7, November 8, 2004

A conference committee of U.S. representatives and senators has been unable to reconcile bills passed by their respective chambers to implement the recommendations that the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) made in its final report.  The conferees have been working to come up with a final bill, which the commissioners hoped the House of Representatives and the Senate would both approve and the president would sign into law before the Nov. 2 election.  The main points of disagreement among the conferees have been the two bills’ very different provisions with regard to reorganizing the way the government gathers and processes intelligence, as well as a number of controversial law enforcement and immigration provisions that are in the House bill but not in the Senate bill.

The Senate bill, called the National Intelligence Reform Act of 2004 (S. 2845), passed by a vote of 96 to 2.  The 9/11 Recommendations Implementation Act (HR 10) passed the House by a vote of 282 to 134.  On a much closer vote, the House earlier had rejected an amendment that would have adopted the Senate bill as it was originally introduced.

Section 3052 of HR 10 would set eligibility and documentation requirements for driver’s licenses, and its effect would be to require that states issue driver’s licenses only to U.S. citizens and certain immigrants.  Under this provision, undocumented non–U.S. citizens and even some noncitizens with lawful immigration status would be ineligible to obtain licenses.  The provision also would prohibit the federal government from accepting as proof of the bearer’s identity most documents, other than unexpired passports, issued by foreign governments, and it would prevent states from accepting foreign-issued documents (other than unexpired passports) from applicants for driver’s licenses or state ID cards.

Under HR 10, states would lose much of their power to set the rules for issuing driver’s licenses to their residents, although they would continue to be in charge of issuing licenses.  The bill’s provisions delineate

HR 10 also would radically expand immigration authorities’ power, under a process known as expedited removal, to deport noncitizens without an immigration court hearing if they cannot prove that they have been in the U.S. more than five years.  In addition, HR 10 would: (1) make certain noncitizens ineligible to ask the federal courts to review their immigration cases by filing petitions for writs of habeas corpus; (2) allow immigration authorities to deport noncitizens to their country of origin even if the country has no functioning government; (3) provide that noncitizens who fit certain criteria must be detained indefinitely; (4) make it more difficult for people fleeing torture to gain asylum in the U.S.; and (5) allow immigration authorities to deport noncitizens before federal courts have decided their cases.

In contrast, the Senate bill’s driver’s license provision would not make immigration status an eligibility criterion for obtaining a license or ID; and the bill does not have provisions regarding foreign identity documents, expedited removal of noncitizens, asylum, judicial review of immigration cases, or mandatory detention of certain noncitizens.  Section 1027 of S. 2845 calls for the Dept. of Transportation (DOT) to issue regulations that include standards for processing of driver’s license applications; security standards to prevent tampering with, altering, or counterfeiting driver’s licenses; and standards for verification of documentation presented by applicants to prove their identity when they apply for a license or ID.  In addition, it provides that federal standards cannot infringe on a state’s power to set driver’s license eligibility standards.  S. 2845 also would require that the DOT, in consultation with the Dept. of Homeland Security (DHS), engage in a “negotiated rulemaking” process with groups that represent the interests of states and drivers.  One of the Senate bill’s provisions also clarifies that the federal government may not require a single design for all state driver’s licenses, and it requires that, as procedures are put in place to enhance the security of driver’s licenses and ID documents, steps be taken to protect the privacy, civil, and due process rights of all people who apply for such documents.

Conferees opposed to the House bill’s immigration provisions argue that the 9/11 Commission did not recommend them and that immigration restrictionist representatives hijacked the intelligence reorganization process to try to further their restrictionist agenda.  The 9/11 Commission Report recommends that federal standards be established for issuance of identity documents, including driver’s licenses, to prevent fraud and “ensure that people are who they say they are.”  But it does not recommend that immigrants be prevented from obtaining driver’s licenses, nor that they be arbitrarily prevented from using identity documents issued by foreign governments. 

The following provides brief summaries of HR 10’s foreign identity document and driver’s license–related provisions, as well as arguments against these provisions:

Foreign Identity Documents.  Section 3006 of HR 10 would prohibit the federal government from accepting any document as proof of identification, regardless of the document’s reliability or any other prudential considerations, except: 

In addition, section 3052 provides that the only foreign-issued document that the states could accept as proof of identification from someone applying for a driver’s license or state ID card would be an official passport.

Although these provisions do not mention the Mexican consular ID card (matrícula consular) by name, they target its acceptance.  In the past, some members of Congress have tried repeatedly to prohibit banks or the federal government from accepting the matrícula consular or other forms of ID issued by foreign governments, only to be voted down each time.  But if HR 10’s restrictions on accepting foreign identity documents were to be enacted, their effects would be much more far-reaching than merely restricting the acceptability of consular IDs.

HR 10’s foreign identity document–related provisions also would severely restrict the acceptability within the U.S. of other documents issued by countries around the world to their citizens, including national ID cards, birth certificates, foreign driver’s licenses, and school ID cards.  If these provisions were to be enacted, even noncitizens who are lawfully present in the U.S. might find it impossible to produce an acceptable document that proves their identity.  For example, Canadians who enter the U.S. for a temporary stay are not required to carry a passport, but under HR 10’s provisions they would not be allowed to present other documents to prove their identity.  And people who have applied for asylum in the U.S. often do not have a passport because they cannot safely obtain a passport from the government that is persecuting them.  If HR 10’s provisions were to be enacted, it is possible that asylum applicants would not be able to present alternative foreign ID during their asylum proceedings or when seeking release from detention. 

Furthermore, if they were enacted, HR 10’s provisions could actually prevent noncitizens from obtaining legal immigration status in the U.S.  Current immigration law recognizes that a variety of foreign documents prove the identity of the person to whom they were issued.  For example, an applicant for temporary protected status (TPS) must present proof of his or her identity and nationality, such as a passport, a birth certificate accompanied by a photo ID, a national identity document issued by the applicant’s country of origin that bears a photo a or fingerprint, or even an affidavit explaining why that evidence is not available and affirming that the applicant is a national of a country whose nationals or former residents are eligible for TPS. 

A congressionally mandated policy of rejecting most foreign identity documents also would conflict with the Bush administration’s current stance with respect to such documents as it is articulated in the “statements of administration position” issued by the White House on Oct. 7 and Oct. 18, 2004.  The Oct. 7 statement says that the “Administration has concerns with the overbroad alien identification standards proposed by the [House] bill that are unrelated to security concerns.”  Moreover, both the U.S. Dept. of Justice and the Dept. of the Treasury have stated, in effect, that efforts by certain members of Congress to limit financial institutions’ ability to accept the matrícula consular from depositors or customers are misguided and counterproductive. 

Enacting HR 10’s provisions regarding foreign documents also would undermine the work of a Homeland Security Council–led task force of executive branch agencies.  According to a Government Accountability Office (GAO) report titled Border Security: Consular Identification Cars Accepted within United States, but Consistent Federal Guidance Needed, the task force—which includes members from the Departments of Homeland Security, State, Justice, Treasury, Transportation, Education, and Health and Human Services, as well as from the Office of the Vice President and the General Services Administration—is examining the issue of establishing “a consistent federal policy regarding use and acceptance of foreign-issued [consular ID] cards” such as the matrícula consular.

Finally, HR 10’s foreign ID documents–related provisions would subvert the policies of many state and local governments and police departments that consider it in the best interests of their communities to accept the matrícula consular as a form of ID.  The GAO report cited above reports that as of Feb. 2004, 1,159 police departments, 363 cities, 153 counties, and 160 financial institutions in the U.S. accepted the Mexican consular ID.

Driver’s Licenses.  In its final report, the 9/11 Commission did not call for imposing restrictions on noncitizens’ access to driver’s licenses.  Yet section 3052 of HR 10 would impose such strict requirements related to issuing driver’s licenses and IDs that it would leave the states virtually no discretion to set policies tailored to each state’s own unique circumstances and needs.  In addition, HR 10 would effectively force states to share driver’s license–related information electronically with all the other states, without mandating any safeguards for ensuring that drivers’ privacy and civil rights are not abused in the sharing of this data.  Under such a system, a state-issued driver’s license would be a national ID card in all but name. 

In contrast, the driver’s license provisions of the Senate bill, S. 2845, would not themselves impose license eligibility, identity documentation, document verification, and other such requirements on the states, but rather they would provide for a negotiated rule-making process through which specific license and ID–related requirements would be established.  Moreover, S. 2845 specifically provides that such standards could not override a state’s eligibility standards.  However, it does leave open the possibility that the standards would in fact be restrictive and that they would constitute a first step toward instituting a national ID card.  As a result, groups as disparate as the American Civil Liberties Union and the American Conservative Union oppose the driver’s license/ID provisions of both the Senate and House bills.

Immigrants’ advocates, along with many chiefs of police and other law enforcement officials, argue that for the sake of security it is better if all noncitizen drivers can be reliably identified in an emergency, an arrest, or an urgent investigation, just like all other drivers; that it is unsafe to have millions of drivers on the roads who have not been tested and cannot obtain insurance; and that failure to license millions of drivers encourages identity theft and development of a black market in false documents, both of which undermine the purpose of establishing standards. 

The 9/11 Commission staff report titled 9/11 and Terrorist Travel, which was issued on Aug. 21, 2004, sets out the information that is available on the types of visas the 9/11 terrorists had, their entries into the U.S., and the driver’s licenses they obtained and used.  As the staff report makes clear, some of the hijackers were mistakenly issued valid visas or lawfully admitted to the U.S.; the rest were here legally.  Five of the terrorists obtained their licenses fraudulently by falsely claiming state residency, which is different from lawful residency for immigration purposes.  (Since 9/11, some states have tightened their procedures for establishing that applicants for driver’s licenses in fact reside in the state in which they are applying for a license.)

All the 9/11 terrorists, therefore, had the immigration documents necessary to establish that their immigration status was lawful.  And they did not need U.S.-issued driver’s licenses to board the airplanes they hijacked on 9/11; if they had not had driver’s licenses to present before boarding, they could have presented their foreign passports instead.  Under HR 10’s provisions, noncitizens would still be allowed to present foreign passports to establish their identity before boarding flights in the U.S.  

HR 10 would mandate expanded communication between license-issuing agencies and require states to capture and store digital images of identity source documents.  Privacy experts argue that such a requirement would actually facilitate identity theft.  Finally, section 3053 of the bill would defer to the American Association of Motor Vehicle Administrators (AAMVA)—a nongovernmental, nonprofit organization with its own institutional agenda and little accountability to the public—over other parties that would be affected were HR 10’s provisions to be enacted.  Although HR 10 does not identify the AAMVA by name, section 3053 is designed to require states to comply with the AAMVA’s “Driver License Agreement,” and it does not mandate that state elected officials or organizations that represent drivers or other stakeholders be consulted.

Conclusion.  Although federal legislation that would impair the ability of noncitizens to obtain driver’s licenses or use foreign identity documents has not yet been passed, the 9/11 Commission implementation bills will likely come to life again in a lame duck session of this Congress or when the next Congress begins work.  Immigrants’ advocates must also be prepared for the issues to be raised outside the context of the attempt to translate the commission’s recommendations into law.

 

 

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