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The U.S. House of
Representatives has passed and sent to the Senate legislation that would, among
other things, 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.
The version of the REAL
ID Act of 2005 (H.R. 418) that passed the House on Feb. 10, 2005, includes
last-minute amendments that make it even more extreme than the bill that House
Judiciary Committee Chair F. James Sensenbrenner introduced in January (see
“REAL ID Act of 2005 Reintroduces DL Provisions Stripped from Last Year’s 9/11
Commission Implementation Bill,”
Immigrants’ Rights Update, Feb. 10, 2005, p. 1). The vote was 261 to
161, with 42 Democrats voting in favor of the bill, and 8 Republicans and 1
Independent voting against it.
The House’s Republican
leadership made good on their promise to Sensenbrenner to attach the bill to the
first “must-pass” legislation to be considered by Congress in its new term—the
Emergency Supplemental Wartime Appropriations Act (H.R. 1268), which will
appropriate funds for the war in Iraq, U.S. military operations in Afghanistan,
and relief for the victims of the December 2004 tsunami in the Indian Ocean.
H.R. 1268 passed the House on Mar. 16 on a vote of 388 to 43.
Legislation comparable
to the REAL ID Act has yet to be introduced in the Senate. Such legislation may
well have a harder time in the Senate, but the REAL ID Act’s provisions could
nonetheless become law even without initial Senate approval. The Senate will
undoubtedly pass a supplemental appropriations bill to fund the Iraq war and
tsunami relief. When that happens, the House and Senate appropriations bills
will have to be reconciled in a conference committee. House Republican (and
perhaps some Democratic) members of the committee will fight to have the REAL ID
Act’s provisions included in the compromise bill, even if the act has not passed
in the Senate. This is precisely the scenario that occurred when each house
passed its own intelligence reform bill in Oct. 2004. Then, insistence by House
Republicans that provisions very similar to those in H.R. 418 be included in the
compromise bill almost prevented passage of the Intelligence Reform and
Terrorism Prevention Act, which Congress finally passed on Dec. 17, 2004.
Besides the driver’s
license/ID–related provisions described in the last issue of
Immigrants’ Rights Update, the REAL
ID Act contains other provisions that have immigrants’ rights advocates deeply
concerned.
Section 101 of the act
would make it much harder for people fleeing persecution to obtain asylum.
Asylum applicants would have to prove that persecution was their persecutors’
central motive, rather than just one of their motives, and provide
corroborating evidence that they suffered persecution. Under the act’s asylum
provisions, inconsistent testimony on minor facts that are irrelevant to a
person’s asylum claim could be the basis for denying asylum, and the act would
make it much harder to overturn an immigration judge’s decision about whether or
not an asylum applicant is credible, even if that decision is based on cultural
bias.
Before his bill passed
the House, Sensenbrenner amended it to eliminate the statutory cap on the number
of asylees who can be granted lawful permanent residence each year. Asylees
are entitled to apply for LPR status a year after being granted asylum, but a
limit of 10,000 asylee adjustments to LPR status per year has created a
years-long backlog. Elimination of the cap is, of course, much desired by
immigrants’ rights advocates. But they view that one positive provision as
being outweighed by the bill’s overwhelmingly restrictive provisions
Section 102 of the bill
would give the secretary of Homeland Security the authority to waive all
federal, state, and local laws to expedite construction of fences and other
barriers on the U.S.-Mexico and U.S.-Canada borders. The provision was
initially interpreted to have this effect only on a stretch of border near San
Diego. However, a Feb. 5, 2005, report by the Congressional Research Service
makes clear that the waiver authority would extend well beyond this. Because
this provision is so sweeping, congressional staffers have joked that it would
allow the Dept. of Homeland Security to hire undocumented workers to build
border fences.
Sections 103 and 104 of
the bill would amend the USA PATRIOT Act by expanding the terrorism-related
grounds of inadmissibility and removal. These sections would allow for the
deportation of non–U.S. citizens who have provided humanitarian, nonviolent
support to organizations deemed “terrorist” by the U.S. government, even if that
support was legal when it was provided.
Sensenbrenner added a
last-minute amendment to the bill, section 105, that would dramatically reduce
the availability of review by the federal courts of administrative decisions in
removal cases. For the first time since the Civil War, no judicial
review, even by habeas corpus, would be available to many people ordered removed
by immigration judges or the Board of Immigration Appeals. This provision also
would make it much harder for a person ordered removed to obtain a stay of
removal while his or her case is pending in federal court. For asylum-seekers,
this would mean that they could be deported to the country where they were
persecuted, while their appeals are pending in federal court. For such people,
a decision by a federal appellate court reversing the removal order could well
come too late.
Under sections 106–108
of the bill, bail bondsmen would be given extraordinary power to “pursue,
apprehend, detain and surrender” immigrants in removal proceedings, even when
the immigrants have not violated the terms of their bonds. The bondsmen would
have wide authority to keep premiums paid for the issuance of a bond, even
without any judicial determination that the conditions of the bond were
violated. Appearance bonds would be a minimum of $10,000 instead of the current
$1,500. Only immigration judges, not Immigration and Customs Enforcement
agents, would have the authority to release immigrant respondents on their own
recognizance. As a result, more respondents would be detained throughout their
proceedings. Bondsmen would also be given expansive access to all information
in the custody of federal, state, and local government authorities, with no
privacy or confidentiality limits whatsoever. These provisions were contained
in an amendment offered by Rep. Pete Sessions (R-TX). After minimal discussion,
the amendment was approved by a voice vote in the House, and no one, not even a
Democrat, called for a recorded vote on it.
Section 202 of the REAL
ID Act would create federal standards for the issuance of driver’s licenses.
Under this section, federal agencies would be allowed to accept driver’s
licenses or 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 or a noncitizen who has one of several specified immigration
statuses. All documents presented by license or ID applicants to prove their
identity, state residence, or citizenship or immigration status would have to be
verified by the issuing agency, a process likely to create delays and obstacles
for citizens and noncitizens alike. Proponents of this provision claim that its
impact would be felt principally by states that currently issue driver’s
licenses to undocumented drivers. However, the impact would be much greater,
because no state currently complies with all of the provision’s stringent
requirements. The National Association of State Legislatures and the National
Governor’s Association strongly oppose these provisions as expensive,
burdensome, and impossible to meet within the required time period.
Under section 202 of
the bill, in order to be eligible for the federal funding they would need to be
able to comply with and implement the bill’s provisions, states would have to
join an interstate compact regarding sharing of driver’s license data—the
“Driver License Agreement.” The most recent version of this agreement is not
public, has not been adopted by any state, and has not been vetted by Congress.
Under a prior version of it, states agree to link their license/ID databases not
only with one another’s, but also with those of Canada and Mexico. However, the
bill makes no provisions for ensuring the security or confidentiality of the
information that would be shared under the Driver License Agreement.
Finally, section 202 of
the bill would repeal section 7212 of the Intelligence Reform and Terrorism
Prevention Act, which created a negotiated rulemaking process through which
states, the federal government, and interested parties would make
recommendations for minimum federal driver’s license/ID standards. This
process is well under way. The U.S. Dept. of Transportation has issued a
Federal Register notice outlining the parameters of the negotiated rulemaking
committee, calling for comments on the process, and requesting applications for
membership on the committee. The deadline for submitting comments and
applications was Mar. 25.
The White House has
issued conflicting statements regarding the REAL ID Act. On the one hand, the
administration issued an official policy statement that endorsed many provisions
of the bill. On the other hand, the White House has called on Congress to pass
a “clean” bill to provide supplemental funding for the Iraq war, with no other
legislation attached to it. Because the REAL ID Act is attached to the House’s
supplemental appropriations bill, it is likely that attempts will be made on the
Senate floor or in the conference committee to attach other immigration-related
legislation, including possibly a farm guest-worker bill, AgJobs, and a bill
that would allow undocumented students to legalize their immigration status, the
DREAM Act. Doing so would have the effect of weighing down the bill with a host
of complex provisions that would make it much more difficult to pass. The use
of such bills as “poison pills” would be an unfortunate result for those who
support passage of these important pieces of legislation.
By
Joan Friedland,
NILC immigration policy attorney
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