Waiving laws that interfere with construction of physical barriers at the borders;

Updating and tightening the laws on application for asylum and deportation of aliens for terrorist activity;

Introducing rules covering "delivery bonds" (rather like bail bonds but for aliens who have been released pending hearings);

Funding some reports and pilot projects related to border security; and

Changing visa limits for temporary workers, nurses, and Australian citizens.

Contents

1 Legislative history

2 Minimum nationwide standards for state driver's licenses or ID cards, employment, and banking

2.1 Data requirements

2.2 Documentation required before issuing a license or ID card

2.3 Linking of license and ID card databases

3 Controversy and opposition

3.1 State non-compliance

4 Immigration

4.1 Waiving laws that interfere with construction of border barriers

4.1.1 Judicial review controversy

5 Application for asylum; deportation of aliens for terrorist activity

5.1 Asylum and deportation controversy

6 Other provisions

6.1 Delivery bonds

6.2 Miscellaneous provisions

7 Notes

7.1 References

7.2 External links

Legislative history

The Real ID Act started off as H.R. 418, which passed the House[1] and went stagnant. It was then attached as a rider on a military spending bill (H.R. 1268) by Congressman Jim Sensenbrenner (R) of Wisconsin (the author) and was voted 100-0[2]) . It was signed into public law on May 11, 2005[3].

On March 2, 2007, it was announced that enforcement of the Act would be postponed for two years[4]. The provisions of the bill will be delayed from going into effect until December 2009.

Minimum nationwide standards for state driver's licenses or ID cards, employment, and banking

In the United States, driver's licenses are issued by the states, not by the federal government. States also issue voluntary identification cards for non-drivers, and set the rules for what data is on the card and what documents must be provided to obtain one. States also maintain databases of licensed drivers and ID cardholders.

Driver's license implications

The REAL ID Act's implications for driver's licenses and ID cards is detailed in Title II of the Act. Title II of REAL ID — “Improved Security for Driver’s License’ and Personal Identification Cards” — repeals the provisions of a December 2004 law that established a cooperative state-federal process to create federal standards for driver’s licenses and instead directly imposes prescriptive federal driver’s license standards.

The REAL ID Act Driver's License Summary[5] details the following provisions of the Act's driver's license title:

Repeal of 9/11 Commission Implementation Act DL/ID Provisions

Minimum Standards for Federal Use

DL/ID Document Standards

Minimum DL/ID Issuance Standards

Verification of Documents

Immigration Requirements

Security and Fraud Prevention Standards

Data Retention and Storage

Linking of Databases

Grants to States

Authority

After December 31, 2009, "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements" specified in the Real ID Act. States remain free to also issue non-complying licenses and ID's, so long as these have a unique design and a clear statement that they cannot be accepted for any Federal identification purpose. The federal Transportation Security Administration is responsible for security check-in at airports, so bearers of non-compliant documents would no longer be able to travel on common carrier aircraft without additional screening[6].

In addition, the federal Social Security Administration, (42 U.S.C. § 666(28)), requires the States to maintain a new hire directory. Employers would no longer be able to accept, or ultimately hire, bearers of non-compliant documents for employment.

Also, financial institutions are required to assist the Federal Parent Locator Service, ((42 U.S.C. § 666(17)). Financial institutions would require compliant documents from all customers. Bearers of non-compliant documents would be denied financial or banking services.

Additional federal and state agencies who will require compliant documents are listed, in part, in (42 U.S.C. § 666).

The national license/ID standards cover:

What data must be included on the card;

What documentation must be presented before a card can be issued; and

How the states must share their databases.

Strictly speaking, many of these requirements are not new. They replace similar language in Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.L. 108-458), which had not yet gone into effect before being repealed by the Real ID Act.

Data requirements

Each card must include, at a minimum, the person's full legal name, signature, date of birth, gender, driver's license or identification card number. It also includes a photograph of the person's face and the address of principal residence. It is required to have physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes.

It will use common machine-readable technology, with defined minimum data elements (the details of which are not spelled out, but left to the Secretary of Homeland Security, in consultation with the Secretary of Transportation and the states, to regulate).

Documentation required before issuing a license or ID card

Before a card can be issued, the applicant must provide the following documentation[7]:

A photo ID, or a non-photo ID that includes full legal name and birthdate.

Documentation of birthdate.

Documentation of legal status and Social Security number

Documentation showing name and principal residence address.

Digital images of each identity document will be stored in each state DMV database.

Linking of license and ID card databases

Each state must agree to share its motor vehicle database with all other states. This database must include, at a minimum, all the data printed on the state drivers' licenses and ID cards, plus drivers' histories (including motor vehicle violations, suspensions, and points on licenses). Any state that does not link its database, containing records on all drivers and ID holders, to the database of the other states loses its federal funding.

Original legislation contained one of the most controversial elements which did not make it into the final legislation that was signed into law. It would have required states to sign a new compact known as the Driver License Agreement (DLA) as written by the Joint Driver's License Compact/ Non-Resident Violators Compact Executive Board with the support of AAMVA which would have required states to give reciprocity to those provinces and territories in Canada and those states in Mexico that joined the DLA and complied with its provisions. As a part of the DLA, states would be required to network their databases with these provinces, territories and Mexican states. The databases that are accessible would include sensitive information such as Social Security numbers, home addresses and other information. The foreign states and provinces are not required to abide with the Drivers Privacy Protection Act (DPPA) and are free to access and use the sensitive information as they see fit.

Traffic violations would be required to be sent to the licensing jurisdiction and be recorded. The licensing jurisdiction would be required to act on the violation according to its own laws such as assigning points and insurance surcharges to the driver not only for violations reported from DLA members but also from non-DLA members as well. The DLA requires member states to treat non-DLA states as if they are DLA members concerning their drivers.

Since foreign countries are included, there are no procedures to deal with due process issues such as a U.S. driver getting cited for a violation in a foreign country. Such due process issues include nations, such as Mexico, which do not subscribe to the concept of innocent until proven guilty. Although not discussed, other countries could sign on to the DLA at a later time, such as the European Union countries.

Controversy and opposition

Arguments for and against identity cards are covered in detail under Identity document.

There is disagreement about whether the Real ID Act institutes a "national identification card" system.[8] The new law only sets forth national standards, but leaves the issuance of cards and the maintenance of databases in state hands; therefore, some[who?] claim it is not a true "national ID" system, and may even forestall the arrival of national ID. Others[who?] argue that this is a trivial distinction, and that the new cards are in fact national ID cards, thanks to the uniform national standards created by the AAMVA and (especially) the linked databases.

State non-compliance

See also: National identification number

Portions of the Real ID Act pertaining to states were scheduled to take effect on May 11, 2008, three years after the law passed, but the deadline has been extended to December 31, 2009[9].

On May 24, 2007, a bill in the New Hampshire Senate that rejected the REAL ID Act passed unanimously.[10] The bill previously passed the NH House, but due to differences between the two versions, the house will have to take up the Senate's changes.

On January 25, 2007, a Resolution passed overwhelmingly in the Maine Legislature that refuses implementation of the Real ID Act in that State, and demands Congress repeal the law. Many Maine lawmakers believe the law does more harm than good, that it would be a bureaucratic nightmare to enforce, is threatening to individual privacy, makes citizens increasingly vulnerable to ID theft, and would cost Maine taxpayers at least $185 million in five years because of the massive unfunded federal mandates on all the states. The Resolution vote in the Maine House was 137-4 and in the Maine Senate unanimously, 34-0.

On February 16, 2007, Utah unanimously passed a resolution which opposes the REAL ID Act[11]. The resolution states that REAL ID is "in opposition to the Jeffersonian principles of individual liberty, free markets, and limited government." It further states that "the use of identification-based security cannot be justified as part of a 'layered' security system if the costs of the identification 'layer'--in dollars, lost privacy, and lost liberty--are greater than the security identification provides."

Idaho, Arkansas, Hawaii, and Washington joined Maine in passing legislation opposing Real ID.[12] On April 17, 2007, Montana governor Brian Schweitzer signed into law Montana's rejection of the REAL ID.[13] Similar bills are pending in Georgia, Massachusetts, and South Carolina.[14]

Other states have moved aggressively to upgrade their IDs since 9/11, and still others have staked decidedly pro-Real ID positions, such as California.[15] In announcing the new regulations, Secretary of Homeland Security Michael Chertoff cited California, Alabama and North Dakota[16] as examples of states that had made progress in complying with Real ID.

Immigration

This article or section is missing citations and/or footnotes.

This article or section contains insufficiently sourced phrases. Using inline citations helps guard against copyright violations and factual inaccuracies. You may improve the article or discuss this issue on its talk page. Help on using footnotes is available. This article has been tagged since April 2007.

As of May 11, 2005, several portions of the Real ID Act have imposed higher burdens and stricter standards of proof for individuals applying for asylum and other related forms of relief. For the first time, immigration judges can require an applicant to produce corroborating evidence (8 U.S.C. § 1229a(c)(4)(B). Additionally, the government may also require that an applicant produce corroborating evidence, a requirement that may only be overcome if the judge is convinced that such evidence is unavailable (8 U.S.C. § 1252(b)(4).

Also, many[Who?] have pointed out that the 9/11 terrorists all had proper identification. However, there was little to no verification of the terrorists' immigration status made when they obtained or renewed those licenses.

Additionally, some[Who?] say that it is unwise to restrict undocumented immigrants from obtaining driver's licenses, as this may keep them from obtaining liability insurance. Others[Who?] say that the new law isn't restrictive enough, because it allows states to offer "not for federal ID" licenses that might be obtained by undocumented immigrants. In fact, several states (e.g., Utah and Tennessee) have already started issuing such "driving privileges certificates/cards" in lieu of regular drivers licenses. This practice, which is allowed under REAL ID, allows applicants who are unable to prove their legal status in the US to be tested and licensed to drive and obtain liability insurance using a special license which is otherwise marked as not being valid for the purpose of identification.

Waiving laws that interfere with construction of border barriers

An earlier law (Section 102 of Pub.L. 104-208, which is now part of 8 U.S.C. § 1103) provided for improvements to physical barriers at the borders of the United States.

Subsection (a) of this law reads as follows: "The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States."

Subsection (b) orders the Attorney General to commence work on specified improvements to a 14-mile section of the existing border fence near San Diego, and allocates funds for the project.

Subsection (c) provides for waivers of laws that interfere with the work described in subsections (a) and (b). Prior to the Real ID Act, this subsection allowed waivers of only two specific federal environmental laws.

The Real ID Act amends the language of subsection (c) to make the following changes:

Allows waivers of any and all laws "necessary to ensure expeditious construction of the barriers and roads under this section."

Gives this waiver authority to the Secretary of Homeland Security (rather than the Attorney General). Waivers are made at his sole discretion.

Restricts court review of waiver decisions: "The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph." Claims are barred unless filed within 60 days, and cases may be appealed "only upon petition for a writ of certiorari to the Supreme Court".

These waivers apply to barrier construction anywhere on the United States border (not just at San Diego, as some sources have erroneously reported).

Judicial review controversy

A previous version of the Real ID Act (H.R. 418) would have prohibited any judicial review of Homeland Security law waivers for barrier construction. Critics maintained that this would elevate the Secretary of Homeland Security above the law, and this language was changed in the final version (H.R. 1268).

But even the limited restrictions on judicial review remain controversial. Supporters of the Real ID Act see a need to restrain so-called "judicial activism" so needed barriers can be built. Opponents feel that the restrictions on judicial review may exceed the authority Congress has to regulate the courts (as spelled out in Article Three of the United States Constitution), and violate the principle of separation of powers.

Application for asylum; deportation of aliens for terrorist activity

The Real ID Act introduces stricter laws governing applications for asylum and deportation of aliens for terrorist activity. However, at the same time, it makes two minor changes to U.S. immigration law:

Elimination of the 10,000 annual limit for previously-approved asylees to adjust to permanent legal residence. This had been urged for years because the average asylee had a 17-year wait before he would be able to achieve legal resident status. As a result, in fiscal years 2005 and 2006, the backlog was greatly reduced as 147,131 asylees won legal permanent residence.

Usage of 50,000 unused employment-based visas from 2003. This was a compromise between proponents who had earlier tried to include all employment visas which went unused between 2001 and 2004, and immigration restrictionists. They were used, mostly in fiscal year 2006, for Schedule A workers newly arrived mainly from the Philippines and India, rather than for adjustments of status cases like the American Competitiveness in the 21st Act.

The deportation of aliens for terrorist activities is governed by the following provisions.

Section 212(a)(3)(B): Terrorist activities

The INA (Immigration & Nationality Act) defines "terrorist activity" to mean any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The hijacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

(III) A violent attack upon an internationally protected person (as defined in Section 1116(b)(4) of Title 18, United States Code) or upon the liberty of such a person.

(IV) An assassination.

(V) The use of any:

(a) biological agent, chemical agent, or nuclear weapon or device.

(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.

Other pertinent portions of Section 212(a)(3)(B) are set forth below:

"Engage in terrorist activity" defined

As used in this chapter (Chapter 8 of the INA), the term, "engage in terrorist activity" means in an individual capacity or as a member of an organization:

to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

to prepare or plan a terrorist activity;

to gather information on potential targets for terrorist activity;

to solicit funds or other things of value for:

(aa) a terrorist activity;

(bb) a terrorist organization described in Clause (vi)(I) or (vi)(II);

(cc) a terrorist organization described in Clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity;

to solicit any individual:

(aa) to engage in conduce otherwise described in this clause;

(bb) for membership in terrorist organization described in Clause (vi)(I) or (vi)(II); or

(cc) for membership in a terrorist organization described in Clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity; or

to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training:

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in Clause (vi)(I) or (vi)(II); or

(dd) to a terrorist organization described in Clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.

This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that that this clause should not apply."

"Representative" defined

As used in this paragraph, the term, "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.

"Terrorist organization" defined

As used in Clause (i)(VI) and Clause (iv), the term ‘terrorist organization’ means an organization:

designated under Section 219 (8 U.S.C. § 1189);

otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in the activities described in Subclause (I), (II), or (III) of Clause (iv), or that the organization provides material support to further terrorist activity; or

that is a group of two or more individuals, whether organized or not, which engages in the activities described in Subclause (I), (II), or (III) of Clause (iv).

Section 140(d)(2) of the "Foreign Relations Authorization Act", Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence, perpetrated against noncombatant targets by subnational groups or clandestine agents."

Asylum and deportation controversy

Please help improve this article by expanding this section.

Further information might be found on the talk page or at requests for expansion. Please remove this message once the section has been expanded.

This article has been tagged since January 2007.

Many immigrant advocates feel that these new rules put unreasonable burdens on aliens trying to prove they are escaping from persecution, and unnecessarily broaden the definition of terrorist activity such that many will suffer "guilt by association" even if they don't support terrorism

Other provisions

Please help improve this article by expanding this section.

Further information might be found on the talk page or at requests for expansion. Please remove this message once the section has been expanded.

This article has been tagged since January 2007.

Delivery bonds

The Real ID Act introduces complex rules covering "delivery bonds." These resemble bail bonds, but are to be required for aliens that have been released pending hearings.

Miscellaneous provisions

The remaining sections of the Real ID Act allocate funding for some reports and pilot projects related to border security, and change visa limits for temporary workers, nurses, and Australians.

Under the REAL ID Act nationals of Australia are eligible to receive a special E-3 visa. This provision was the result of negotiations between the two countries that also led to the Australia-United States Free Trade Agreement which came into force on January 1, 2005.

Notes

References

^ 261-161-11 House.gov

^ Senate.gov

^ Pub.L. 109-13

^ LATimes.com

^ NCSI.org

^ "Transportation Security Administration: Information for Travelers"

^ betanews.com

^ McCullagh, Declan. "FAQ: How Real ID will affect you", CNET News.com, May 6, 2005. Accessed May 5, 2007

^ latimes.com

^ [1]

^ RESOLUTION OPPOSING REAL ID ACT

^ ACLU.org

^ BillingsGazette.net

^ Smith, Tim. "REAL ID may be real headache", GreenvilleOnline, March 25, 2007. Accessed March 26, 2007

^ ZDNet.com

^ DHS.gov

External links

Broad coalition launches campaign to urge the public to submit comments to Dept. of Homeland Security regarding REAL ID program. Comments due May 8, 2007. [2]

Actual proposed rules Search ID: DHS-2006-0030-0001 Click on "Docket ID" for commentary.

Real ID - The Art of the Posible [http:http://www.diamondconsultants.com/PublicSite/ideas/perspectives/downloads/INSIGHT%20-%20Real%20ID.pdf]

National Governor's Association (NGA) and National Council of State Legislator's (NCSL) REAL ID Impact Analyis [3]

9/11 Security Solutions, LLC Identity Document Security Library [4]

U.S. Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia

Title: Understanding the Realities of REAL ID: A Review of Efforts to Secure Drivers' Licenses and Identification Cards

http://www.senate.gov/~govt-aff/index.cfm?Fuseaction=Hearings.Detail&HearingID=430]

NoNAIS.org [5] which covers developments around the US REAL ID proposal as well as the USDA National Animal Identification System which is a remarkably similar system for animals.

From California DMV: Report to the Legislature on the Status of the REAL ID Act

Legislators Against REAL ID [6]

The Loyal Nine

REAL ID Nightmare [7]

The American Civil Liberty Union's position against REAL ID [8]

Retrieved from "http://en.wikipedia.org/wiki/REAL_ID_Act"