|
By signing the Emergency Supplemental Appropriations
Act for Defense, the Global War on Terror, and Tsunami Relief into law
on May 11, 2005, President Bush also enacted the REAL ID Act, sweeping
anti-immigrant legislation masquerading as an anti-terrorism measure
that passed the House and the Senate without hearings, testimony, or
public discussion of its extreme consequences.
consideration of the real id act in the senate
The House of Representatives passed the REAL
ID Act on Feb. 10, 2005, and, as had been expected, subsequently
attached it to the emergency supplemental appropriations bill that the
House sent to the Senate in March 2005. The Senate, however, never
voted on the REAL ID Act, though many predicted that if it had, the bill
would have failed. Sen. Johnny Isakson (R-GA) introduced it as an
amendment to the Senate’s supplemental appropriations bill but withdrew
his amendment before a vote could take place. A resolution expressing
the sense of the Senate that the REAL ID Act should not be part of a
final House-Senate supplemental appropriations conference report was
offered but never voted on.
Inclusion of the REAL ID Act in the House
version of the emergency supplemental bill created the opportunity for
other immigration proposals to be offered as amendments during the
Senate’s debate on its version of the supplemental bill. Sens. Larry
Craig (R-ID) and Ted Kennedy (D-MA) offered AgJOBS, the Agricultural
Jobs, Opportunity, Benefits, and Security Act, as an amendment on the
Senate floor. The amendment needed 60 votes to invoke cloture, or end
debate and bring the measure to a vote. Senators voted 53-45 for the
proposal, 7 votes short of the 60 needed to invoke cloture. Even though
the amendment failed, the majority of Senators voted in support of it,
which is a good sign for AgJOBS’s chances in the future.
A guest worker program created out of a
compromise between advocates for farmworkers and the agriculture
industry, AgJOBS would create an opportunity for some undocumented
farmworkers who have already worked at least 100 hours in the U.S. to
earn adjustment to lawful permanent resident status. This amendment
marked the first vote on AgJOBS in Congress. The bill currently has 47
cosponsors in the Senate and 30 cosponsors in the House.
Sen. Saxby Chambliss (R-GA) also offered an
amendment to the Senate’s supplemental appropriations bill, proposing a
harsh new guest worker program under which existing labor protections
for foreign agricultural workers would have been eliminated. This
amendment, which also needed 60 votes to be brought to a vote, failed
21-77.
The Senate did, however, approve a
noncontroversial immigration amendment to exempt seasonal workers who
have worked in the U.S. in previous years from the national cap of
66,000 H-2B visas. This provision, sponsored by Sen. Barbara A.
Mikulski (D-Md.), was not in the House bill but became part of the
supplemental appropriations conference report subsequently approved by
the House and Senate.
the conference committee and the conference report
After the House and Senate each had passed its
own supplemental funding bill, the two bills had to be reconciled in a
conference committee. The committee consisted of all members,
Republicans and Democrats, of the Senate Appropriations Committee and
some of the members of the House Appropriations Committee.
Democratic conferees complained that they were
entirely excluded from the conference process and that a promised vote
on the REAL ID Act in the conference never took place. In protest, Sen.
Patty Murray (D-WA) refused to sign the final conference report. Other
Democrats signed the report but indicated their opposition to the REAL
ID Act.
The conference committee issued its report on
May 3, 2005, with much of REAL ID included in the final supplemental
funding bill. The House and Senate could vote only to approve or
disapprove the report, but not to amend it. The report was approved in
the House by a vote of 368-58 and by a unanimous vote in the Senate.
The principal provisions of the final report and changes from the House
bill are described below.
Section 101 – “Preventing Terrorists from Obtaining Relief from
Removal.” This grossly misnamed provision will make it harder for
people fleeing persecution to be granted asylum. To be granted relief,
they will have to prove that their race, religion, nationality,
political opinion, or membership in a particular social group is at
least one central reason for their having been persecuted in their
country of origin or for their fearing future persecution. This differs
from the parallel provision in the House’s version of REAL ID, which
would have required that an asylum applicant show that an enumerated
ground was the central reason for the persecution he or she
suffered.
This section also will allow immigration
judges to find an applicant not credible because of inconsistencies
between statements made at any time to anyone, even when those
statements are not material to the claim for asylum. IJs will have
greater latitude in requiring corroborating evidence of asylum seekers’
claims, and the federal courts will be barred from reviewing
discretionary decisions whether made within or outside of removal
proceedings. The law also repeals the requirement in the Intelligence
Reform and Terrorism Prevention Act of 2004, enacted just this past
December, for a Government Accountability Office study on asylum.
As previously reported, the only bright
spot in this section of REAL ID is that it eliminates the cap on the
number of asylees who are eligible to receive lawful permanent resident
status each year (previously limited to 10,000 asylees per year) and
removes the cap on the number of persons who may be admitted as refugees
or granted asylum based on their resistance to coercive population
control methods (previously set at 1,000 per year).
Section 102 – “Waiver of Legal Requirements Necessary for
Improvement of Barriers at Borders; Federal Court Review.” This
section gives the secretary of the Dept. of Homeland Security
discretionary authority to waive all “legal requirements” that would
prevent expeditious construction of barriers and roads along the
nation’s borders. The House provision was modified so that the DHS
secretary would not be required to exercise his discretion to construct
barriers (giving the secretary authority similar to that which the
president now has). Instead of granting the DHS secretary the authority
to waive “all laws” that stand in the way of completing border barriers
and roads, as the House version of the bill provided, the conference
report grants the secretary the authority to waive “legal
requirements.” In addition, the conference report provides that the
government’s decisions with regard to waiving legal requirements are
subject to judicial review, but only if breaches of constitutional
rights are alleged. Such challenges must be filed within 60 days of the
secretary’s action.
Sections 103 & 105 – “Inadmissibility Due to Terrorist and
Terrorist-Related Activities” & “Removal of Terrorists.” Sections
103 and 105 expand the terrorism-related grounds of inadmissibility and
removal. These sections will allow deportation of non–U.S. citizens
who have provided humanitarian, nonviolent support to organizations
deemed “terrorist” by the government, even if that support was legal
when it was provided. The expanded definition of terrorism under this
provision will likely result in almost every group that has ever
threatened to use violence being considered, under the law, a terrorist
group. It applies retroactively, so it allows deportation for past
lawful activities; and it also provides that the spouse and children of
a person who has engaged in prohibited activities may be removed from
the U.S. along with the guilty party.
Section 104 – “Waiver for Certain Grounds of Inadmissibility.”
This section gives the secretary of State and the secretary of DHS
unreviewable discretion to waive certain grounds of inadmissibility
related to terrorism. The secretary of State cannot exercise this
discretion once the immigrant is in removal proceedings. This provision
is similar to that in the original House-passed bill, with the addition
of a requirement that the secretary of State and secretary of DHS
provide Congress with a report on the persons granted waivers under this
provision.
Section 106 – “Judicial Review of Orders of Removal.” This
section bars habeas corpus review, mandamus actions, or actions under
the All Writs Act wherever “judicial review” and “jurisdiction to
review” are already prohibited. However, the section also restores
jurisdiction to the courts of appeal on judicial review of removal
orders to consider “constitutional claims” or “questions of law” despite
any statutory bars to review. This provision is broader than the
House-passed version’s, which would have limited review to
constitutional claims or “pure” questions of law. Because of this
restoration of court-of-appeal jurisdiction over judicial review of
removal orders, the effect of the bar to habeas review is uncertain.
However, the requirement that petitions for review in the court of
appeals be filed within 30 days of a removal order (no such deadline
applies to habeas cases) will undoubtedly make review difficult to
obtain for many immigrants.
Under this section, cases challenging a
removal order pending in a federal district court on the date of the
law’s enactment (May 11, 2005) will be transferred to the appropriate
federal court of appeals. Many attorneys hastened to file habeas
petitions prior to May 11 for persons who might have missed the deadline
to file a petition for review, as habeas review would be barred.
Title II – “Improved Security for Driver’s Licenses and Personal
Identification Cards,” Section
202 – “Minimum Document Requirements and Issuance Standards for
Federal Recognition.” This section of the final bill is almost
identical to the parallel section in the House-passed version. It will
prevent the federal government from accepting state-issued driver’s
licenses or ID cards as proof of identification unless they meet the
REAL ID Act’s requirements within three years (though the DHS secretary
may grant an extension of that deadline). Driver’s license and state ID
card applicants must prove that they are either U.S. citizens or
lawfully present in the U.S.; however, not every lawful immigration
status will qualify the person holding it to be eligible for a driver’s
license/ID that the federal government will accept as proof of
identification. Any document presented by a driver’s license/ID
applicant to prove his or her identity, date of birth, Social Security
number, and residence will have to be verified by the agency that issued
the document. Applicants will not be allowed to use any foreign
document other than a passport to prove their identity, legal name, and
date of birth.
Unlike the original House bill, the final bill
includes a provision specifically requiring states that issue a driver’s
license/ID that does not comply with REAL ID’s requirements to include a
notice on the document’s face that it cannot be accepted by the federal
government as ID and to use a unique design and color for any such
documents they issue. Under the original House bill, states would not
have been prohibited from issuing such a document; this provision simply
specifies how such documents should appear.
The enacted bill also eliminates the
House-passed bill’s requirement that, 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.” However, the enacted law still provides that states must
electronically share with other states the “information” in their motor
vehicle databases. This is an extraordinarily broad information-sharing
provision, whose potential for making identity theft even more easy and
likely than it is now received almost no attention during consideration
of the bill. The provision has no confidentiality safeguards written
into it, nor does it impose limits on what constitutes “information,” on
the use or reuse of the information, nor on what state agencies will
have access to the information.
The driver’s license section also repeals the
driver’s license–related provisions of the Intelligence Reform and
Terrorism Prevention Act, enacted in December, including the one that
established a negotiated rulemaking process through which states, the
federal government, and interested parties would make recommendations
for minimum federal driver’s license standards. As a result, the
advisory committee formed to carry out the negotiated process, which
began meeting in April, has been dissolved.
State organizations such as the National
Conference of State Legislatures and the National Governors Association
opposed REAL ID’s driver’s license provisions as unworkable and a huge,
unfunded federal mandate. They complained that Congressional Budget
Office estimates of the costs to the states of implementing REAL ID’s
requirements drastically understated the likely actual cost of
implementing them.
other provisions
The final bill does not include a
controversial provision that was added to the House-passed version of
the bill that would have granted bail bondsmen extraordinary power to
“pursue, apprehend, detain and surrender” immigrants in removal
proceedings, even when the immigrants had not violated the terms of
their bonds.
The final bill also increases the number of
immigrant visas available to nurses and physical therapists, as well as
the number of temporary visas available for highly skilled Australian
workers.
conclusion
REAL ID’s rigid and unworkable driver’s
license and identification card provisions will prevent many immigrants,
both documented and undocumented, as well as U.S. citizens from
obtaining driver’s licenses or IDs. It runs roughshod over states that
issue licenses regardless of immigration status as a matter of public
safety, or that take a rational and practical approach to which domestic
and foreign documents they will accept to prove driver’s license/ID
applicants’ identity.
The REAL ID Act will make it harder for people
fleeing persecution to be granted asylum in the U.S. It also shields
immigration decisions from judicial review by stripping the federal
courts of jurisdiction over habeas corpus, mandamus and All Writs Act
jurisdiction in immigration cases.
Far from solving problems, the REAL ID Act
adds to the problems of our immigration system and needs to be repealed,
as will become increasingly evident as the law’s implementation moves
forward. The immigration system is broken, but it won’t be fixed by
further shattering the hallmarks of a democratic society. Rather, we
need comprehensive immigration reform based on economic and social
realities and our societal values.
—By
Joan Friedland, NILC staff
attorney
|
