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Real ID is a Real Disappointment

The REAL ID Act, an anti-immigrant, bad-for-the-border bill introduced in January of this year, has flown through Congress in the past three months to final approval. Introduced January 26, 2005 the bill was voted out of the House of Representatives virtually unchanged in just over two weeks. Though the Senate refused to consider REAL ID as a freestanding bill, the House attached the Act in its entirety as an amendment to the Iraq War and Tsunami Relief Emergency Supplemental Bill – a so-called “must pass” bill. In doing so, the House forced the Senate to discuss REAL ID in a conference committee, where the two chambers resolve differences between their versions of a bill. When entering conference the last week of April, the Senate was holding strong against REAL ID. However, as President Bush threw his full support behind the anti-immigrant provisions by the end of that week, Senate resolve shattered, and the conference committee reported out a final version of the Iraq War bill on May 3, 2005, including much of the REAL ID provisions.

Though this is a disheartening result, this fight over REAL ID has just served as Act I in the larger debate over immigration reform - we may have lost the battle, but we can still win the war! Currently, we are preparing to see the release of the first serious immigration reform bill presented in the Senate by Senators McCain (R-AZ), and Kennedy (D-MA). We are expecting introduction of this bill in by the end of May. While we hope there will be alot to like about this bill, we are not expecting it to be perfect, so there will be work to be done to make sure that it continues to evolve in a favorable way.

One of the most important things that communities and individuals can do at this point in time is to express their outrage that the Congress steamrolled REAL ID through to final passage. We are making the following suggestions to activists nationwide:

• Create noise against the REAL ID provisions that pass. Those Congressional members who supported REAL ID should know that their positions were not acceptable. While DC people are usually the ones who want to highlight the positive and stay away from criticizing members of Congress, one DC person said today that, with REAL ID, it is time for communities to voice their discontent. While our communities have felt this for some time, it shows how bad the climate is that a DC person feels this way also.
• For now, consider neither supporting nor opposing the McCain-Kennedy bill. (This will be very contentious as some groups will support and some groups won’t.) Instead, use the introduction of the bill as an opportunity for immigrant communities to present their vision of immigration reform. Highlight specific portions of the bill that communities agree with and specific portions of the bill that communities oppose, rather than simply saying “we support” or “we oppose” the entire bill.
• Use the bill as yet another opportunity for community forums. Consider the introduction of the bill as part of a process to continue to raise community awareness and to create a better bill (through future amendments, etc.).

We will continue to provide you with more information about the McCain-Kennedy bill in the future. In the meantime, we would like to provide you with a quick overview of what passed in the REAL ID bill, and where we won our small victories.

Fencing Provisions: REAL ID now provides the Secretary of Homeland Security with the Authority to waive any legal regulation that would impede the construction of border barriers, fences, or roads. This construction would only be contestable in the courts on constitutional grounds.

While this is pretty regressive, we did win a few small victories here. First, the original bill that passed the House required the Secretary of Homeland Security to waive all laws that would impede construction. Making this a discretionary waiver basically transfers the already existing discretionary waiver authority that the President has always had to the Secretary of Homeland Security. The original version also barred all court challenges to construction. While the construction cannot be challenged because it breaks laws (regardless of whether they are laws that were waived or not), it does allow for challenges to constitutional rights. This does provide some avenues for us, but less than we would like.

Asylum Provisions: There are new, severe restrictions on people seeking asylum in the US. They will be required to show a greater degree of evidence, and the bill includes new, overly-broad reasons for denial of asylum in an attempt to prevent terrorists from seeking political asylum. The bill does increase the caps on the number of people who can seek asylum, which is a positive step forward. But the new regulations will make it more difficult for them to qualify.

Again, there were a few small victories for asylum seekers. First, the requirement that the requirement that a person seeking asylum in one of the currently established 5 protected categories (race, religion, ethnicity, political affiliation, or membership in a particular social group) be the "central motive" of their request has been softened to be "at least one central motive." The requirement that asylees provide documentation of their persecution has been softened to “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Finally, the original version of the bill would have allowed for an asylum seeker to be deported back to their home country while their case was still in appeals. The final version strikes that provision, and is a significant victory for asylees.

Drivers License Provisions: Unfortunately, there were no significant modifications to the new drivers license provisions in REAL ID. These provisions will have a significant impact on US citizens as well as on immigrants. They provide for new federal standards for the issuance of drivers licenses. They will require anyone going to get or renew a driver's license to provide proof of citizenship or legal immigration status. In some cases, this will require an applicant to show up to four pieces of ID. For foreign nationals, only a passport will be accepted as proof of identiy and date of birth. There are new criteria for the design of driver's licenses that are set to federal standards. In the case that a state does not meet all these requirements, it must state that on the ID, making it invalid for use as identification for any federal purpose, including boarding an airplane. These provisions will also create a nationally centered database that contains all the information individuals submit to receive a driver's license.

There are a few other minor sections of REAL ID, but few that have such broad scope. The only one worth mentioning to border activists is that there is a provision requiring the Border Patrol to conduct a study of how to better use technology to secure the border. It requires the Border Patrol to conduct the study and then submit proposals for how to better use technology within a year of the bill passing - not necessarily a bad provision in an of itself, but in the hands of the Border Patrol, it could become an invitation to further militarize the border.

Despite the disheartening results of this debate and the current climate in Washington, we remain optimistic that the introduction of serious comprehensive immigration reform legislation in the Senate will put a new face on the debate, and put our opposition on the defensive. And we encourage local communities to speak out against these most recent developments to help set a positive stage for the upcoming dialogue on broad-based immigration reform.