Oppose the ‘REAL ID Act of 2005’

Recipient: Senator

Dear Senator:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we urge you to oppose H.R. 418, the “REAL ID Act of 2005,” which was recently attached to H.R. 1268, the FY2005 supplemental appropriations bill. This radical proposal would undermine the rule of law, have a profound negative impact on immigrants and asylum seekers, and do little to protect American lives.

As an institution committed to civil rights, LCCR has spoken out on issues affecting the rights of immigrants because our nation’s immigration laws have far too often been used as a weapon against the weakest and least popular members of our society. In the past, immigration laws have been used to enforce overt racial discrimination and undermine the civil rights and liberties of noncitizens. Today, under the 1996 immigration revisions, various post-9/11 immigration policies, and the manner in which they have been enforced, immigration laws are again being used to attack basic civil rights – most notably, the right to due process and equal protection under the law. H.R. 418 appears to be little more than the latest such attack.

LCCR strongly opposes the “REAL ID Act” for five key reasons:

• It would give the Secretary of Homeland Security the unprecedented authority, entirely free of any judicial oversight, to waive “all laws” that he determines are necessary to quickly construct barriers at United States borders.
• The asylum-related provisions in Section 101 would prevent many legitimate asylum seekers from obtaining safe haven in the United States.
• The drivers’ license provisions in Title II would unwisely force state motor vehicle departments to enforce immigration laws, undermining public safety and driving millions of undocumented immigrants even further underground.
• It would undermine our system of checks and balances by stripping the federal courts of jurisdiction to review erroneous rulings in deportation cases, opening the door to drastic consequences in many cases.
• It would provide bail bondsmen the unprecedented authority, with few if any clear due process safeguards, to arrest and detain noncitizens who face deportation.

First, H.R. 418 would authorize the Secretary of Homeland Security to waive “all laws” that he believes would interfere with the expeditious construction of barriers at our national borders. It would also eliminate the ability of any court to review a decision to waive a law, or to order any form of relief for damages arising from such a decision.

The overbreadth of the authority granted by H.R. 418 is extremely disturbing. It would literally place the Secretary of Homeland Security above the law. The use of the term “all laws” indicates that the Secretary could waive not only particular environmental protections, as current law provides, but also any civil rights laws, immigration laws, labor laws or even criminal laws that he – in a decision that is completely immune from judicial review – unilaterally determines may stand in the way of border security construction projects. This irresponsible and unprecedented language is an affront to our most basic Constitutional principles.

Second, H.R. 418 would make several changes to the already-stringent rules governing the granting of asylum and other forms of humanitarian relief from removal. First, it would provide immigration officials broad discretion to arbitrarily demand “corroborating evidence” to support an asylum claim, with little regard to whether the evidence can realistically be obtained. Second, it would require asylum seekers to prove their persecutor’s “central” motive for engaging in persecution, which could essentially make the outcome of asylum petitions depend on the “cooperation” of persecutors themselves. Third, it would give immigration officials broad discretion to deny asylum based on highly subjective factors such as “demeanor,” which, given the trauma of persecution and its lasting impact, can be highly unreliable indicators of an asylum seeker’s credibility.

These changes would do little to prevent terrorist attacks. Any individual who is known to engage in terrorist activity is already barred from obtaining asylum or any other immigration benefit. Instead of making our country safer, Section 101 will simply make it far more difficult – or, in many cases, impossible – for legitimate asylum seekers to establish their claims. The current laws governing asylum wisely recognize the importance of judging asylum claims on a case-by-case approach, and while some changes to the laws are necessary, the changes outlined in Section 101 would take asylum reform in precisely the wrong direction.

Third, H.R. 418 would repeal the drivers’ license provisions that were enacted only several months ago in the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), which
implemented the recommendations of the 9/11 Commission. In their place, H.R. 418 would impose a legal presence requirement on all state drivers’ licenses. It would also create a separate temporary license for visitors on temporary visas, and would require motor vehicle agencies to verify each piece of identification used to support an application for a drivers’ license with the agency, domestic or foreign, that issued it.

In addition to creating tremendous administrative burdens on state motor vehicle agencies, Title II would not lead to fewer terrorists or make it more difficult for determined ones to obtain identification. Instead, it would simply result in more unlicensed and uninsured drivers on the roads. It would also lead to increased discrimination against immigrants who hold a different “temporary” drivers’ license, and may cause DMVs to erroneously deny drivers’ licenses to U.S. citizens who do not possess the necessary documents to verify their citizenship status. Furthermore, the increased difficulties in obtaining drivers’ licenses would also make voter registration under the National Voter Registration Act of 1993 (the Motor Voter Act) less accessible for citizens, particularly racial and ethnic minorities.

Fourth, as amended by the House, H.R. 418 would further undermine our system of checks and balances and deprive noncitizens of their right to due process under law. The new Section 105 would eliminate habeas jurisdiction in most cases, bar the federal courts from reviewing mixed questions of law and fact, and prevent federal courts from issuing stays of removal to protect asylum seekers and other immigrants (those who would remain eligible for federal judicial review after these changes) from deportation while their appeals are pending in federal court.

LCCR strongly opposes any proposal that would eliminate access to the federal judiciary for any individuals. For over 50 years, the federal courts have played an indispensable role in the interpretation and enforcement of laws that affect civil rights, and attempts to weaken the role of the courts have too often served as proxies for attempts to enshrine discrimination into the law. By largely eliminating the ability of noncitizens to turn to the federal courts, the new “court stripping” proposals in H.R. 418 appear to be little more than an extension of measures enacted at the height of an earlier wave of anti-immigrant sentiment in 1996 – laws that were so extreme that the Supreme Court ultimately had no choice but to step in and scale them back. Further eliminating the ability of the federal courts to review erroneous immigration rulings would do little but insulate administrative officials from their own mistakes and increase the likelihood of tragic consequences.

Finally, H.R. 418 as amended would outsource immigration enforcement functions by giving bail bondsmen the power to arrest and detain immigrants who are in removal proceedings, with few safeguards. It would al