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By
Joan Friedland
Immigration Policy Director
The U.S. Dept. of Homeland Security (DHS)
has issued its long-delayed final regulations, “Minimum Standards for
Driver’s Licenses and Identification Cards Acceptable by Federal
Agencies for Official Purposes,” to implement the REAL ID Act of 2005.
The regulations, which were published in the Federal Register on Jan.
29, give states considerably more flexibility than the act itself seems
to contemplate, and they substantially extend the time period for
complying with the act’s provisions. However, the rules pertaining to
immigrants’ access to driver’s licenses are rigid, giving states little
flexibility, subjecting immigrants to burdensome requirements, and
providing few due process protections. DHS’s goal in easing the
requirements for the states is to lessen the cost and burden they will
incur in implementing REAL ID’s requirements; and this, in turn, appears
intended to head off growing opposition among the states to REAL ID. In
contrast, the final regulations do very little to ease the new burdens
immigrants will face when the act’s provisions take effect.
Congress passed the REAL ID Act as part of the
Emergency Supplemental Appropriations Act for Defense, the Global War on
Terror, and Tsunami Relief, 2005 (HR 1268), and President Bush signed it
into law on May 11, 2005. The act provides that beginning three years
after REAL ID’s enactment (May 2008), driver’s licenses cannot be
accepted by federal agencies for any “official” purpose unless they meet
the act’s requirements. Those cover eligibility for a license
(including immigrants’ eligibility for licenses), the process for
obtaining a license (including verification of the authenticity of
documents presented by applicants to establish their identity,
residence, or immigration status), duration of licenses’ validity,
sharing of driver’s license information among the states, and the
operation of state motor vehicle departments. DHS issued proposed
regulations to implement the law in March 2007 and invited comments from
the public. (NILC’s comments on the proposed regulations are available
here.)
The Timetable
Under the regulations, in order for state-issued driver’s
licenses to be accepted by federal agencies as identification, states
must either fully comply with REAL ID’s requirements by May 11, 2008, or
request an extension of time in which to comply. States have until Mar.
31, 2008, to apply for an extension of time to comply. If the extension
is granted, it lasts until Dec. 31, 2009. States may obtain a second
extension — until May 10, 2011 — “by demonstrating material compliance
with the core requirements of the Act and this rule.” To qualify for
the second extension, states must apply for it by Oct. 11, 2009.
Appendix A to the final rule sets out the checklist for what constitutes
material compliance. Residents of states that have been granted the
extensions will be able to use their pre–REAL ID licenses for all
federal purposes until 2014 or, if they are older than age 50 as of Dec.
1, 2014 (born before Dec. 1, 1964), until 2017.
DHS’s Response to
Immigrant-Specific Comments
DHS received more than 21,000 comments in response to the
proposed rules.
NILC’s comments focused on aspects of the rules that particularly
affected immigrants. The discussion below focuses on those areas and
DHS’s responses as articulated in the final rule.
Omission of certain immigration statuses. The act
itself lists the immigration statuses that render a person eligible for
a REAL ID–compliant license. Neither the proposed nor the final rules
mitigate the omission of certain immigration statuses from this list.
Under the act, the only non–U.S. citizens who can obtain a REAL
ID–compliant license are persons who fall into one of the following
categories: they are either lawfully admitted for permanent or
temporary residence; or have conditional permanent resident status; or
are an asylee or refugee; or have a valid, unexpired nonimmigrant visa
or nonimmigrant visa status; or have a pending asylum application; or
have a pending or approved application for temporary protected status (TPS);
or have deferred action status; or have a pending application for
adjustment of status to lawful permanent residence.
This list leaves out persons granted withholding of removal or
withholding of deportation; persons paroled into the U.S.; applicants
for nonimmigrant visas (including those who apply as victims of
trafficking or other crimes); Cuban/Haitian entrants (the subcategory of
those paroled into the U.S., at least until they have been in the U.S.
for one year and can apply for adjustment to permanent residence);
battered spouses and their children, and battered children and their
parents (unless and until they can apply for adjustment of status or
unless they are granted deferred action); persons granted Family Unity
status; persons granted deferred enforced departure (DED) status;
applicants for suspension of deportation or cancellation of removal; and
persons under an order of supervision.
DHS, which administers and enforces immigration law, knows the
meaning of immigration categories and could have analogized the missing
categories to the categories listed in the statute. For example, the
rule could have concluded that withholding of removal is the equivalent
of asylum, or that DED or deferral of removal are the equivalent of
deferred action. It did not do so.
Documents proving identity and immigration status.
The proposed rule included an extremely limited list of documents that
immigrants could present to prove their identity and immigration
status. The list included the following: unexpired permanent resident
card (I‑551); unexpired employment authorization document (EAD); or
unexpired passport accompanied by a valid U.S. visa. Limiting this list
to basically three documents was not required by the act but was
intended to make it easier for state motor vehicle department staff to
process applications from noncitizens, since the staff would have to
become familiar with and recognize only three types of immigration
documents. The potential result would have been that many lawfully
present noncitizens, including people in categories specifically listed
in the statute as being eligible for REAL ID–compliant driver’s
licenses, would have been prevented from obtaining them.
Under the final rule, to prove their identity immigrant
applicants must present one of the documents on the above limited list;
but if they present an unexpired passport with a valid visa, the
passport also must be accompanied by an I‑94 showing when they were most
recently admitted to the U.S.
However, the final rules do recognize that immigration status
can be proved by a variety of documents. This change was motivated by
the fact that whatever document was presented would have to be verified
through the Systematic Alien Verification for Entitlements (SAVE) system
This requirement presents its own problems. SAVE is an automated
system by which federal, state, and local government agencies can verify
the immigration status of noncitizens. Under the SAVE program, when an
individual’s immigration status cannot be verified immediately, a
secondary verification process is begun, which can include a manual
review of immigration records and files.
Both the REAL ID Act and the final rule presume the reliability
and functionality of the SAVE system. But it has not been independently
evaluated, nor is a mechanism in place to monitor it and ensure
compliance with its rules. This is of critical importance because the
federal government’s immigration bureaucracy has a poor track record
when it comes to maintaining accurate records and reliable processes.
SAVE users themselves are well aware of the program’s deficiencies. In
a survey conducted by the American Association of Motor Vehicle
Administrators, staff at departments of motor vehicles (DMVs) who
currently use SAVE were critical of delays, of the fact that often it
was necessary to contact U.S. Citizenship and Immigration Services
additional times when attempting to obtain a verification, and of the
unavailability and unreliability of SAVE-related data.
The Social Security Administration (SSA), which must verify
noncitizen applicants’ immigration status before issuing them Social
Security numbers (SSNs), has complained that it often experiences
significant delays in obtaining verifications through SAVE and sometimes
receives no response at all.
NILC’s comments on the proposed rule pointed out that it failed
to provide due process protections for noncitizen and naturalized
citizen driver’s license applicants whose immigration status must be
verified through SAVE. The final rule takes no steps to rectify this
deficiency. It does not acknowledge that the verification process can
be delayed, does not set a time limit for completing verification, and
does not require that an applicant be issued a provisional driver’s
license valid until the verification process is completed. Moreover,
the rule does not provide for reasonable access to immigration records
to review them for errors, a mechanism to correct immigration records,
or for an appeal process if verification is wrongly denied. Nor does
the final rule require that state DMVs establish appeals processes to
deal with errors made by DMV staff in determining the immigration status
of license applicants. It also takes no steps to ensure that SSA and
DHS actions that delay issuance of an SSN to a noncitizen do not also
result in the individual being denied a license or in the issuance of a
license being delayed.
No exceptions to the act’s limitation on the use of foreign
documents other than a passport. The act provides that the only
foreign document that may be used to meet its documentation requirements
(including documentation of the applicant’s full legal name, date of
birth, or gender) is a foreign passport.
As NILC pointed out in comments to the proposed rule, many
noncitizens who are eligible for a driver’s license (such as applicants
for asylum or TPS) do not have a passport, nor have they yet been issued
a permanent resident card or an employment authorization document. Such
people would be unable to use other foreign documents, such as a birth
certificate, a marriage certificate, school records or the like, to meet
the act’s requirements, although these same foreign documents are
regularly used to prove identity for the purpose of obtaining
immigration status in the U.S.
The final rule does not make any allowances for this limitation
in the act. In contrast, the rule allows states to put in place an
exceptions process for what appear to be core requirements on
nonimmigration issues, even though such exceptions processes are not
mentioned in the act and would undercut the aim of uniform, strict
requirements. They do, however, present practical solutions to the
act’s deficiencies.
No resolution to the question of how long a temporary
license is valid. Under the act, any temporary license for
which noncitizens in certain immigration status categories are eligible
must be limited in validity to the period of the person’s authorized
stay in the U.S. or, if the person’s authorized stay has no expiration
date, to a period of one year. “Period of authorized stay” could mean
the period until the expiration date on the individual’s visa, or it
could mean the period specified on an I-94 issued to the individual upon
his or her admission to the U.S. Neither the proposed nor the final
rule resolves this issue. The final rule simply repeats the statutory
provision and provides no explanation of what “period of authorized
stay” means. As a result, DMVs may choose their own interpretation of
when a period of authorized stay ends.
Rules regarding “full legal name” will create barriers to
obtaining licenses. The statute requires that a driver’s
license applicant present proof of his or her “full legal name” but does
not define what this means. The final rule defines “full legal name” as
“an individual’s first name, middle name(s), and last name or surname,
without use of initials or nicknames.” This name must appear on the
face of the driver’s license, and it must match the name on documents
used to prove the applicant’s identity. This requirement is slightly
different from the parallel provision in the proposed rule, which made
“family name” an alternative to “middle name” and did not refer to
surnames.
NILC opposed the “proof of name” requirement in the proposed
rule, arguing that it would result in the denial of licenses to
individuals who have established name identities that do not match the
exact structure mandated by the regulation’s definition — for example,
they have dropped a middle name or second last name or now use or go by
an initial or a nickname.
For immigrants, the situation is particularly complicated. In
some countries, the family name precedes the individual’s given name; in
others, the mother’s and father’s last name may both appear as last
names, or, if a woman is married, her mother’s last name may be dropped
from her surname and her husband’s family name added after the father’s
last name. Others may have changed their family name for ease of
pronunciation when they come to the U.S. or may hyphenate or drop one of
their family names. As a result, the names on various documents will
not match.
Unlike the proposed rule, the final rule leaves open the
possibility that foreign documents other than a passport may be used to
track a name change. But it does this in the rule’s preamble, not in
the rule itself. This leaves open the possibility that state DMVs will
choose their own rules regarding “proof of name.” Moreover, the final
rule does not explain how different documents that reflect different
versions of a name will be reconciled to meet the rule’s requirements.
This is clearly an area that also will affect U.S. citizens. It
conflicts with the common law rule that allows an individual to use a
name other than the one given to him or her at birth, provided that
there is no fraudulent, criminal or wrongful purpose behind using this
other name.
Conclusion
The final rule does not resolve the concerns raised by immigrants
regarding the proposed rule. But its deficiencies go far beyond these
concerns. The ACLU’s
scorecard on the final rule gives DHS a failing grade. The REAL ID
Act remains a deeply flawed law whose deficiencies could not be and have
not been cured by the final regulations.
73 FR 5271–5340 (Jan. 29, 2008).
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