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5/7: REAL ID outcome
Released 09 May 2005  By Sean Mariano Garcia - Latin America Working Group

Dear Border Activists -

I'm writing with some unhappy news regarding the REAL ID Act. This Wednesday, we got final language from the House and Senate negotiators working on the Iraqi War Funding bill regarding their decisions on REAL ID. By and large, they adopted REAL ID in its entirety. While this is a blow to everyone in favor of improving the lives of immigrants in the US, and for border communities in particular, we did get some small concessions that improve the final version - but only slightly. The House of Represenatives voted to accept this language last night, and the Senate is expected to follow suit at the beginning of next week. The President has indicated he will sign the bill into law.

I do want to thank everyone who made phone calls and spoke with their congressional offices to voice opposition to this bill. Without such outcries, it is unlikely that we would have even gotten the concessions that appeared in the final version of the bill. And 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! As I write this, 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 the next two weeks. 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. I'm going to quote a colleague at the American Friends Service Committee about appropriate reactions:

? 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, I'm going 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.

Sorry to be the bearer of bad news as the weekend kicks off, but I encourage all of you to think how you can convert your anger and frustration into community activism that will create positive change as we look forward to the next fight on McCain-Kennedy.

Best regards - Sean

Sean Mariano Garcia
Senior Associate, Latin America Working Group
T: 202/546-7010 F: 202/543-7647
Latin America Working Group
Action at home for just policies abroad

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