REAL ID Is Law; Asylum, Drivers License Rules to Change
After nearly a yearlong fight between Congressman James
Sensenbrenner and allies his in Congress versus nearly 600 organizations
advocating for the rights of immigrants, the controversial REAL ID Act of 2005
is law. The measure was included in the Emergency Supplemental
Appropriations package (H.R. 1268), passed in Congress and was signed by the President on May 11, 2005.
REAL ID has three major sections – one dealing with
asylum applications and removal proceedings; another covering drivers license
standards; and a third covering border security.
Section 101 of the bill is entitled “Preventing
Terrorists from Obtaining Relief from Removal.”
It makes a number of changes to evidence requirements in asylum
applications, applications for withholding of removal and other forms of relief
from removal. These changes will generally take effect when President Bush signs
The bill requires asylum applicant so prove that one of the
enumerated grounds for asylum was or will be “at least one central reason”
for the applicant’s persecution. This is actually a softening of earlier
language that said that one of the five grounds was “the central reason” for
Immigration judges will now require asylum and withholding
applicants to obtain corroborating evidence unless and applicant cannot
reasonably obtain the evidence. The availability of corroborating evidence will
be considered a finding of fact not easily reviewable by a higher court.
Asylum adjudicators and Immigration Judges making
credibility determinations will make decisions viewing the “totality of the
circumstances” and all relevant factors including “demeanor, candor, or
responsiveness of the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the applicant’s
or witness’s written and oral statements… the internal consistency of each
such statement, the consistency of such statements with other evidence of the
record…and any inaccuracies or falsehood in such statements, without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.”
The last part regarding whether an inaccuracy needed to be
relevant to an asylum claim has been one of the most controversial provisions in
REAL ID. According to immigrant rights advocates, minor inconsistencies are not
unusual for asylum applicants who have experienced traumatic life events.
The standard above will also apply to withholding of
removal cases, removal under the Convention Against Torture law, cancellation of
removal, Violence Against Women Act cancellation cases, NACARA, Cuban Adjustment
Act cases and other discretionary cases.
Courts will now be barred from reviewing discretionary
decisions regardless of whether made as part of a removal process.
The final negotiated version of the bill included a
provision stating that while there is no presumption of credibility, if no
adverse credibility determination is explicitly made by at the time of the
asylum determination, the applicant or witness shall have a rebuttable
presumption of credibility on appeal.
A very good piece of news in REAL ID is the elimination of
the annual cap on the number of asylees who are eligible to adjust status to
permanent residency. Also, the annual limit on the number of people eligible to
be granted asylum as a result of being subject to coercive population control
measures is now eliminated as well.
Section 102 of REAL ID waives all legal requirements the
Secretary of Homeland Security deems necessary to proceed with the construction
of security fences and barriers along the country’s borders. Only
constitutional arguments may be heard by district courts and only if claims are
filed within 30 days of an action by Homeland Security. And the actions of
district courts can only be reviewed by the US Supreme Court.
Section 103 through 105 of REAL ID address terrorist
activities and the removal of terrorists. Section 103 broadens the Immigration
and Nationality Act’s definition of “has engaged in a terrorist activity”
and expands the grounds of inadmissibility for engaging in activities seen to be
assisting “terrorist organizations.” These provisions apply retroactively
which means that cases may be reopened by USCIS that have already closed.
According to the American Immigration Lawyers Association,
this provision breaks an agreement negotiated during the debate of the PATRIOT
Act. Under the Patriot Act, according to AILA, a foreign national who supports a
designated terrorist group is automatically deportable. Support of a
non-designated group will result in deportation only if the foreign national
supports the group’s “terrorist activity.” Under REAL ID, a person is
deportable unless he can prove that he did not know that the group was engaged
in terror activities. Also, according to AILA, the provisions would apply to
spouses and minor children even if the spouse or child had no knowledge of the
terrorist activity or association.
The restrictions imposed on judicial review under
anti-immigration provisions passed in the 1990s are further expanded in Section
106 of REAL ID. The new law will eliminate habeas corpus review wherever
judicial review is eliminated under the Immigration and Nationality Act.
Only US Courts of Appeals can review claims under the
Convention Against Torture Act as well as constitutional claims or questions of
law. Cases pending at US District Courts on the day of enactment will be
transferred to US Courts of Appeal.
According to AILA, this provision is likely to be litigated
on constitutional grounds and it notes that this is the first such restriction
on Habeas relief since the US Civil War.
While one might think that the elimination of habeas corpus
relief or imposing new restrictions on asylum would be the most important
provisions in REAL ID, the drivers’ license sections have been the ones that
have gotten most of the media attention.
Under Title II of REAL ID, the drivers license provisions
of the Intelligence Reform Act passed in 2004 are repealed and new requirements
take its place. Beginning in 2008, federal agencies will be barred from
accepting for official purposes a driver’s license or state identification
card unless the issuing state meets new federal requirements. That means no
getting on airplanes, entering federal buildings, etc. without an approved
license. Realistically speaking, every state will find itself compelled to
comply with the law since failure to issue a complying license will have severe
implications for a state’s residents.
To meet the requirements of REAL ID, the license must
include the following:
States must also set up systems to verify identity. License
applicants must prevent a photo identity document or a non-photo document if it
includes the person’s full legal name and date of birth. The applicant must
present documentation showing the person’s date of birth. The applicant must
present proof of their social security number or verification that the person is
not eligible for a number. And the applicant must present documentation of their
name and address.
Finally, a state must require evidence that the person
If a person can prove they fit into at least one of these
nine categories, they will be eligible for a temporary license or identification
card that will only be valid during the period of time the applicant is
authorized to stay in the US or, if there is no definite end to the period of
authorized stay, for a period of one year. The fact that the documents are
temporary would need to be prominently noted on the card.
In order to extend the validity of the card, applicant
would need to present documentation of continuing legal status.
States will now be required to verify with the issuing
agency the issuance, validity and completeness of each document presented.
Foreign documents other than a passport may not be presented. States will have
to sign agreements with DHS by September 11, 2005 to use the Systematic Alien
Verification for Entitlements (SAVE) program to verify the legal presence of a
person, other than a US citizen, applying for a license or identification
States will also now be required to use special digital
photography technology, verify social security numbers, refuse to issue licenses
to people holding out of state licenses unless the state confirms the license in
the other state has been terminated, secure the storage and security of license
materials, run security checks on people working at motor vehicle offices, and
limiting the validity date of all licenses to know more than 8 years.
States failing to comply with the new requirements will be
required to clearly state on their cards that they are not valid for federal
purposes and they must use a unique color to alert Federal agencies that they
are not acceptable.
States can continue to issue alternative identification
documents – like Tennessee’s driver’s certificates – that state clearly
that the document may not be accepted by any federal agency.
Privacy advocates are also concerned about a new database
that will be made available to DHS and the states containing the information
collected under this Act.
AILA also points out that this law would not have prevented
any of the 9/11 hijackers from getting driver’s licenses. All entered on valid
visas that could have been used to secure licenses under REAL ID. The group that
will largely be affected are Mexicans who enter the US without a valid
There is a provision in the statute permitting the federal
government to make grants to help states in the transition to REAL ID. However,
there is a $500 million estimated price tag associated with the new law and
there is no statement in the law regarding just how much money might be made
Border Infrastructure and Technology Integration
DHS will be required to study for five years the
technology, equipment and personnel needed to address security vulnerabilities
within the US for each field office of CBP.
DHS will be required within six months from the date
President Bush signs this law to begin a pilot program to use ground
surveillance technologies to enhance border security.
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.