August 3, 1998
National Highway Traffic Safety Administration
400 Seventh Street, SW
Washington DC 20590
RE: National Highway Traffic Safety Administration, DOT Notice
of Proposed Rulemaking to Implement Section 656(b) of the
Illegal Immigration Reform and Immigrant Responsibility
Act, 63 Fed. Reg. 33220 [June 17, 1998]
Docket Number NHTSA—98—3945, RIN 2127—AG—91
Dear Sir or Madam:
The following are the comments submitted on behalf of the American Immigration
Lawyers Association regarding the above-mentioned Notice of Proposed
Rulemaking (NPRM). The NPRM purports to implement Section 656(b) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”).
The American Immigration Lawyers Association (“AILA”) is a bar association of
over 5,000 attorneys and law professors practicing and teaching in the field of
immigration and nationality law. Its members represent the entire spectrum of
temporary visitors, immigrants, and the U.S. citizens, families, and employers who
sponsor them for temporary and permanent residence in this country. AILA’s
mission includes the advancement of the law pertaining to immigration and
naturalization, the promotion of reforms and the facilitation of justice in the field.
Section 656(b) of IIRAIRA provides that, commencing October 1, 2000, a Federal
agency may not accept for identification-related purposes a driver’s license or
comparable identification document issued by a State unless the license or document
(collectively referred to in this comment as “document”) confirms to certain
requirements. Those requirements include: (1) the application process for obtaining
the document (for those obtained as new or replacement documents after October 1,
2000) include the presentation of evidence of identity as required by DOT
regulations; (2) the document contain a social security number that can be read
visually or electronically; and (3) contain security features as defined by regulation.
While AILA cannot comment on every aspect of the regulations published by the
DOT to implement this section, we would like to bring to the DOT’s attention a very
significant problem with the NPRM. The regulations not only go farther than
intended by the statute, they are inconsistent with it. By requiring proof of legal
status, the regulations present a requirement both ultra vires the statute and with
serious public safety consequences.
I. The regulation’s requirement of proof of lawful status is inconsistent
with, and contradictory to, the statutory authority.
The regulation requires that an applicant who does not have a social security number
must provide a document “demonstrating lawful presence in the United States in a
status in which the applicant may be ineligible to obtain a social security number.”
However, the statute from which the DOT derives its authority to require social
security numbers does not require that applicants demonstrate lawful status. In fact,
the statute suggests otherwise.
Section 502 of IIRAIRA provides for pilot programs on limiting issuance of drivers’
licenses to aliens not lawfully present in the United States. These pilots programs
are to be conducted to “determine the viability, advisability, and cost-effectiveness of
the state’s denying driver’s licenses” to those here unlawfully. The supplementary
information submitted in the NPRM does not indicate that such pilot programs have
in fact been performed, much less that the results indicated the advisability of
denying licensure to those here unlawfully.
Congress clearly intended that the states were to conduct such pilot programs.
However, the DOT has apparently determined that the information that could be
obtained by these programs is expedient, as this proposed rule would jump to the
next step—prohibiting this class of persons from obtaining a license. No rule
implementing the prohibition of a license to this group of people should be
implemented without the collection and evaluation of this information that Congress
intended to be collected on this very subject. To do so would violate the intent of
Congress in enacting section 502.
Additionally, the statute and the NPRM refer to the need to make the social security
card and those documents derived from it more tamper-proof. The intent of section
656, read as a whole, is the deterrence of fraudulent documents and their use. By
requiring social security numbers or proof of lawful status, this rule would in fact
encourage more, rather than fewer, fraudulent documents in obtaining a driver’s
license or identity document.
II. The proposed regulation does not serve the public safety.
The NPRM and its supplementary information do not make any argument as to why
it would be a valid policy to prohibit aliens here in unlawful status from obtaining
driver’s licenses. In fact, there are valid public safety concerns that point in the
Inability to obtain a license will not deter many illegal aliens from driving in the
United States. It will, however, prevent many, if not all, from obtaining the proper
training that is essential in the driver certification process. It will also prevent them
from obtaining insurance. The end result will be a population on our roads that does
not have the proper skills to drive safely, jeopardizing the safety of all individuals.
Moreover, this population will not have the insurance that would otherwise address
the economic costs of its lack of skill.
The ability to obtain a driver’s license is not the magnet that draws illegal aliens to
the United States. Nor does it keep them here. Not permitting them to obtain a
driver’s license would be unlikely to have an effect on the level of illegal aliens here.
However, it could have a significant adverse impact on the millions of Americans
using our roads every day. For this reason alone the requirement of proving lawful
presence should be removed from the regulation.
III. The regulations go farther than the statute because they do not provide
for any alternatives for States not wishing to be so limited.
The regulation is written in a way as to require the compliance of the States, but the
statute is not. Section 656(b) only requires that a Federal agency cannot accept a
document for identification purposes that does not comport with these regulations.
However, there is nothing in the regulation that gives state the option of supplying a
document that does not comport with the regulations. It appears that states must
issue all licenses in conformance with the regulations after October 1, 2000, even
though that is more than the statute requires.
A valid concern to require that all states comply with this requirement would suggest
that no Federal agency could be expected to keep straight which license would be
valid for Federal identification purposes in compliance with Section 656(b).
However, states can and should be given the option of offering an alternative that
does not comport with the requirements but could nonetheless be used as a driver’s
license or identification document. States can issue two types of documents, one
carrying a notation “valid for Federal identification purposes” and one with the
notation “not valid for Federal identification purposes.” This is already done by
Federal agencies in other instances (for example, in the issuance of social security
cards that are not valid for employment authorization). This would enable illegal
aliens present in the United States who must drive access to training, certification
and insurance while denying them access to other benefits in keeping with the intent
AILA thanks the NHTSA for this opportunity to comment on its proposed
rulemaking and urges the DOT to continue to solicit the views of a wide band of
affected entities before issuing even an interim regulation. We remain available to
discuss this further with the Department at its convenience.
American Immigration Lawyers Association
Jeanne A. Butterfield
Elissa M. McGovern
Associate Director, Liaison