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The REAL ID Act of 2005: Summary and Analysis of Provisions

Cite as "AILA InfoNet Doc. No. 05012772 (posted Jan. 27, 2005)"

AMERICAN IMMIGRATION LAWYERS ASSOCIATION
_______________________________________

TITLE I: Amendments to Federal Laws to Protect Against Terrorist Entry

Section 101-Preventing Terrorists from Obtaining Asylum: This provision alters the standards and evidentiary burdens governing asylum applications and applications for withholding of removal. Specifically, this section:

  • Raises the standard for asylum and withholding eligibility and requires all applicants to prove that a "central reason" for their persecution was one of the enumerated grounds (race, religion, national origin, political opinion, or social group);
  • Allows judges to require credible asylum and withholding applicants to obtain corroborating evidence "unless the applicant does not have the evidence or cannot obtain the evidence without leaving the country" and effectively bars judicial reversal of determinations regarding the availability of corroborating evidence;
  • Authorizes credibility determinations to be based on demeanor or the consistency of an applicant's written or oral statements made at any time to any individual and whether or not under oath;
  • Bars any court from review of any discretionary judgments, decisions, or actions, regardless of whether made in the context of removal proceedings; and
  • Repeals the provision enacted in the intelligence reform legislation mandating a study of vulnerabilities in our asylum system.

Effective Dates: The provisions affecting the standard and burden of proof apply to applications made on or after the date of enactment. The provision affecting judicial review applies to all cases in which the final removal order was issued before, on, or after the date of enactment. The provision affecting judicial review of discretionary administrative decisions applies to all cases pending before any court on, before, or after date of enactment.

Analysis: Terrorists, people who have persecuted others, people who have committed serious non-political crimes abroad, and people who pose a danger to the security of our country are already excluded from both asylum and withholding of removal. This proposal therefore does nothing to enhance our security. It simply denies asylum to people who cannot prove the central motive of their persecutor, who cannot produce corroborating evidence of their account, or whose demeanor is inconsistent with an immigration judge's preconceived expectations.

Proving motive is already a difficult exercise for many individuals fleeing persecution. To require individuals to establish the centrality of one motive above potentially several motives would be to impose a nearly insurmountable standard of proof. The "demeanor" of a person who has suffered torture or persecution has repeatedly been found to be a poor indicator of credibility. Victims of trauma often have a "flat" effect, and find it difficult to make eye contact or discus the details of abuse. Demeanor is also culture-specific: in many cultures, avoiding looking one's interlocutor in the eye, particularly if the interlocutor is an authority figure, is a sign of respect.

An asylum applicant may be unable to produce corroborating evidence for reasons other than the fact that the applicant "does not have the evidence or cannot obtain the evidence without departing the United States." An applicant, for example, may be unable to obtain documentation from the persecuting government without endangering his own safety or that of family members back home who would have to try to obtain such documentation for him.

Section 102-Waiver of Laws Necessary for Improvement of Barriers at Borders: This provision amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) to provide the Secretary of Homeland Security with authority to waive all laws the Secretary deems necessary, in his sole and absolute discretion, to expedite construction of security fences and barriers at the borders. It also prohibits all judicial review of any decision made by the Secretary under this section.

Section 103-Inadmissibility Due to Terrorist and Terrorist-Related Activities: This provision significantly expands the terrorism-related grounds of inadmissibility. Specifically, this provision:

  • Broadens the INA's definitions of "terrorist organization" and "engage in terrorist activity";
  • Expands the grounds of inadmissibility based on endorsement of or support for "terrorist organizations" or terror-related activity; and
  • Establishes a new ground of inadmissibility based on receipt of military-type training.

Effective Date: These amendments apply retroactively.

Analysis: See Section 104 below.

Section 104-Deportability of Terrorists: This provision makes all of the terrorism-related grounds for removal coextensive with the grounds for inadmissibility, as newly expanded by Section 103.

Effective Date: This expansion of the grounds of removal applies retroactively.

Analysis: Taken together, Sections 103 and 104 would make it a deportable offense to:

  • Endorse "terrorist activity," broadly defined as virtually any use of a weapon or threat to use a weapon against person or property.
  • Urge support for a "terrorist organization," even more broadly defined as any two or more people who have ever engaged in such activity.
  • Support or be a member of any "terrorist organization" even where the individual can prove that his activities did not further any terrorist activity whatsoever.

These provisions impose "guilt by association," rendering people deportable for wholly lawful and peaceful activity if such activity supports any group that has engaged in the use of weapons or has threatened to use weapons. Anyone who has given money to entities such as a hospital or school that has an association in any way with a group that uses guns (or threatens to use guns) would be deportable. The proposed measures apply retroactively and would render deportable individuals who provided support, whether or not the group was a designated terrorist organization.

Elimination of the requirement that the group be a "designated" terrorist organization vitiates an agreement brokered during PATRIOT Act debate. Under the PATRIOT Act, a foreign national who supports a designated terrorist group is automatically deportable. A foreign national who supports a non-designated group that has engaged in "terrorism" (including any use or threat to use a weapon) also is deportable but ONLY if he supported the group's "terrorist activity." Under this proposal, the individual is deportable unless he can prove by clear and convincing evidence that he neither knew nor should have known that the organization is a "terrorist organization."

TITLE II: Improved Security for Driver's Licenses and Personal Identification Cards

Section 201-Definitions: This section provides definitions of terminology used throughout Title II.

Section 202-Minimum Document Requirements and Issuance Standards for Federal Recognition: This provision prohibits federal agencies from accepting for any official purpose a state-issued identification card or driver's license that does not meet numerous minimum document requirements and issuance standards, including verification of immigration status. For all noncitizens authorized to be in the United States for a temporary period, the validity period of a driver's license or identification card issued by the State may not exceed the period of authorized stay. For noncitizens with no fixed period of authorized stay, the validity period of driver's licenses and identification cards shall not exceed one year.

Among other things, this provision requires states to verify with the issuing agency the issuance, validity, and completeness of each document required to be presented. In addition, states must enter into a Memorandum of Understanding with DHS no later than September 11, 2005 to verify the legal presence of all noncitizen driver's license applicants.

Effective Date: These provisions become effective three years after the date of enactment.

Analysis: This set of provisions usurps the states' authority to set eligibility requirements and imposes a long list of "minimum" federal standards, including restrictions on immigrants' access to driver's licenses.

Preventing immigrants from obtaining driver's licenses undermines national security by pushing people into the shadows and fueling the black market for fraudulent identification documents. Moreover, it undermines the law enforcement utility of Department of Motor Vehicle databases by limiting rather than expanding the data on individuals residing in a particular state. Perhaps more to the point, it is clear from the 9/11 and Terrorist Travel staff report that the proposed restrictions would not have prevented a single hijacker from obtaining a driver's license or boarding a plane.

The staff report correctly points out that some of the hijackers were mistakenly issued valid visas or lawfully admitted to the U.S. The rest were here legally. All therefore had the immigration documents necessary to prove legal immigration status and that status would have been verified by federal authorities if checked. Indeed, five of the terrorists fraudulently obtained their licenses by falsely claiming state residency, which is different from legal residency for immigration purposes. States have since tightened requirements for proof of state residency to correct this deficiency in their laws. The terrorists did not need U.S.-issued driver's licenses to board the planes on September 11; they had foreign passports that allowed them to board airplanes. Use of foreign passports to board airplanes would still be permitted under this provision.

Section 203-Linking of Databases: This provision requires, as a precondition to federal financial assistance, that States participate in the interstate compact for sharing driver's license information known as the Driver License Agreement.

Section 204-Trafficking in Authentication Features for Use in False Identification Documents: This provision modifies federal criminal code provisions related to trafficking in authentication features.

Section 205-Grants to States: This provision authorizes the Secretary of Homeland Security to make grants to states complying with the provisions of this title and authorizes appropriations necessary for such grants for fiscal years 2005 through 2009.

Section 206-Authority: This provision accords the Secretary of Homeland Security, in consultation with the Secretary of Transportation and the States, the authority to issue regulations, certify compliance, and issue grants pursuant to this title.

Section 207-Repeal: This section repeals Section 7212 (the driver's license and personal identification provisions) of the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).

 
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