Originally Published: 6/14/2006
THE REAL ID ACT OF 2005
By The Issue Wonk
The REAL ID Act of 2005 had a difficult birth. It started has H.R. 418, was passed by the House, but went stagnant in the Senate. It was then attached as a rider to a military spending bill1, H.R. 1268, and made it through both chambers. Public Law 109-131 was signed by President George W. Bush on May 11, 2005. According to the Congressional Research Service (CRS),2 the Act pertains to five (5) areas: eligibility for asylum and withholding of removal; (2) limiting judicial review of certain immigration decisions; (3) waiving authority over laws that might impede expeditious construction of barriers and roads along the U.S.-Mexican border near San Diego; (4) expanding the scope of terror-related activity making an alien inadmissible and deportable; and (5) requiring states to meet certain minimum security standards in issuing drivers’ licenses and personal ID cards.
Eligibility for asylum and withholding of removal. The REAL ID Act introduces stricter laws governing applications for asylum and deportation of aliens. For instance, the CRS report2 states that “[T]he subsection appears to create a new standard requiring that the applicant must establish that a central reason for persecution was or will be race, religion, nationality, membership in a particular social group, or political opinion.” It also states: “However, a person may be denied asylum where economic persecution is motivated solely by the desire to obtain money rather than for the motives enumerated in the statute.” The CRS report goes on to say:
Under H.R. 418, the testimony of the applicant may suffice to sustain the applicant’s burden without corroboration, but only if the adjudicator determines that it is credible, persuasive and refers to specific facts demonstrating refugee status. The adjudicator may base an applicant or witness credibility determination on, among other factors, demeanor, candor, responsiveness, inherent plausibility of the account, consistency between the written and oral statements (regardless of when it was made and whether it was under oath), internal consistency of a statement, consistency of statements with the country conditions in the country from which the applicant claims asylum, and any inaccuracies or falsehoods in such statements. . . If the adjudicator determines in his/her discretion that the applicant should provide corroborating evidence for otherwise credible testimony, such corroborating evidence must be provided unless the applicant does not have it or cannot get it without leaving the United States. The inability to obtain corroborating evidence does not relieve the applicant from sustaining the burden of proof.
Immigrant advocates say these new rules put an unreasonable burden on aliens who seek asylum.
Limiting judicial review of certain immigration decisions. The REAL ID Act limits judicial review by “barring a court from reversing the decision of the adjudicator about the availability of corroborating evidence, unless it finds that a reasonable adjudicator is compelled to conclude that such evidence is unavailable.” 2 It also clarifies that jurisdiction for judicial review is barred “regardless of whether the discretionary judgment, decisions, or action is made in removal of proceedings.” The CRS report states that it is unclear whether these changes would significantly change existing law.
Waiving authority over laws that might impede expeditious construction of barriers and roads along the U.S.-Mexican border near San Diego. Title I says, “The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” It also orders the Attorney General to make improvements to a 14-mile stretch of existing border fence near San Diego, California, and allocates funds for the construction. Finally, it provides waivers from environmental laws that may interfere with any such work. These waivers apply to any barriers anywhere on the U.S. border. The waiver of environmental laws has provided the primary contention with this portion of the law.
Expanding the scope of terror-related activity making an alien inadmissible and deportable. Prior to the REAL ID Act, engaging in terror-related activity made an alien inadmissible to lawfully enter or remain in the United States. However, the grounds for inadmissibility and deportability did not extend to indirect support of terror-related activity. The REAL ID Act changed this. According to the CRS report,2 the Act broadens the definitions of “terrorist organization” and “engage in terrorist activity;” expands “the grounds for inadmissibility based on support of terror-related activity;” and makes “the terror-related grounds for deportability identical to those for inadmissibility.”
Improved security for drivers’ licenses and personal identification cards. Title II of the REAL ID Act is the section that has come under the most scrutiny. After May 11, 2008 no federal agency may accept, for any official purpose (such as passing security checks at airports, opening bank accounts, collecting Social Security), a state driver’s license or identification card unless the card meets the federal requirements. Each card must include the following:
Full legal name
Date of birth
Driver’s license or identification number
Principal residence address
Physical security features designed to prevent tampering, counterfeiting, or duplication
A common machine-readable technology
The technology used to read the card may be a magnetic strip, enhanced bar code, or a radio frequency identification (RFID) chip. Also, the Department of Homeland Security (DHS) can add additional requirements as they see fit.
Therefore, before being issued a card, an applicant must present a photo ID, or a non-photo ID that includes his/her full legal name and birthdate, documentation of the birthdate, proof of a Social Security number or verification that the applicant isn’t eligible for one, documentation showing the principal residence address, and documentation proving that the applicant is legally in the United States. The states are required to verify the authenticity of each document. And, each state must agree to share its motor vehicle database with all other states. The database must include all the data on the identity card plus the drivers’ histories, including motor vehicle violations, suspensions, and points.
While some argue that this constitutes a “national identification card,” others maintain that it does not, as the cards, like current driver’s licenses, are issued by the states and the databases will still be maintained by the states. But some say that this is a trivial distinction and that the cards are, in actuality, national ID cards, particularly since this will have uniform standards linked by the databases.
There are concerns that the “common machine-readable technology” will make identity theft easier, since we can assume that everywhere you go you will be required to show your ID card and the information will be “scanned” into commercial databases such as ChoicePoint and Acxiom. (See review of No Place to Hide by Robert O’Harrow, Jr.) These commercial companies can then sell the information. There’s also concern that, since RFID chips are now required to be embedded in passports, it’s very likely that DHS will use this technology for the ID cards, leading many to speculate that we’re a stone’s throw away from having all our information on a chip on our personal ID card. In addition, the REAL ID card requires your residence address, no post office boxes. There are no exceptions made for people with sensitive jobs, like judges or undercover police officers. In addition, the Intelligence Reform and Terrorism Prevention Act of 2004 included stronger security measures for drivers’ licenses, which were recommended by the 9/11 Commission Report. That’s already law. Thus, many believe the REAL ID Act is unnecessary.
The REAL ID Act is seen by many as a power-grab by the federal government over the states. It’s also viewed as an unfunded mandate, since the states will have to pay for the implementation of the program. How much will it cost? No one knows. I’ve seen estimates as high as $120 million per state. The legislation provides, at Section 204(b): “There are authorized to be appropriated to the Secretary for each of the fiscal years 2005 through 2009 such sums as may be necessary to carry out this title.” A survey conducted by the American Association of Motor Vehicle Administrators3 indicates that, nationwide, the cost will be immense. However, the Congressional Budget Office (CBO) estimates the cost to be “about $100 million over the 2005-2010 period, assuming appropriation of the necessary amounts.” 4
1 H.R. 1268, while referred to as a “military spending bill,” and, indeed was a military spending bill, also included spending authorization for various other things, such as tsunami relief and avian flu prevention and control. It was passed as Public Law 109-13. It’s very long. Scroll down to page 72 to get to The REAL ID Act.
2 Congressional Research Service, “Immigration: Analysis of the Major Provisions of H.R. 418, the REAL ID Act of 2005,” February 2, 2005.
3 The American Association of Motor Vehicle Administrators. “The Real ID Act: Survey of the States on Implementation of Driver’s License and Identification Card Reform,” August, 2005.
4 Congressional Budget Office, H.R. 418, REAL ID Act of 2005, February 7, 2005.
© The Issue Wonk, 2006