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6/3: Latest REAL ID and Other Due Process Issues
Released 05 June 2005  By National Immigration Forum

National Immigration Forum

On May 11, the President signed into law the supplemental appropriations bill providing funding for the war in Iraq and Afghanistan and containing the REAL ID Act of 2005 (Public Law 109-13).

An updated analysis of this bill is available at:

A copy of the bill text can also be found at:

The REAL ID Act raises the burden of proof for asylum seekers and all applicants for relief to unreasonable levels; makes it easier to deport long term residents in the United States for peaceful activities; places restrictions and unfunded mandates on states; and 'streamlines' judicial review of removal orders to 'questions of law' and 'constitutional claims' in the federal courts of appeal; among other things.

Among the rays of sunshine in the REAL ID Act are an elimination of the cap on asylees who are eligible to receive lawful permanent resident ('green card') status (previously, only 10,000 asylees per year could adjust to permanent resident status) and a possible expansion of judicial review in the federal courts of appeals for certain cases that were unreviewable there before REAL ID.

For practitioners, the American Immigration Law Foundation provides helpful resources on their website on judicial review. Please visit their resource page at:
Questions? Contact Shoba Sivaprasad Wadhia e-mail:


Driver's Licenses
The REAL ID Act imposes a complicated new driver's license and ID bureaucracy on states, including a two-tiered license system for foreigners and U.S. citizens, and bans states from issuing regular driver's licenses to undocumented immigrants.

The National Immigration Law Center (NILC) has a great summary of the driver's license provisions:

The National Conference of State Legislatures (NCSL) has also issued an excellent summary:

In terms of follow up, groups like NCSL are conducting a cost analysis of this provision on states.

Estimates ranges from the hundreds of millions to the billions.

To join a list-serv on driver's license issues, or for more information, contact: Michele Waslin e-mail: or Joan Friedland e-mail:


The 'Gang' Bill
On May 11, the House passed a bill with troubling immigration related provisions known as the Gang Deterrence and Community Protection Act of 2005 (H.R. 1279).

Among other things, the bill would expand the definition of 'crime of violence' and as a result, the definition of an 'aggravated felony' in the immigration code.

Expanding the already broad aggravated felony definition means that more immigrants (even long term permanent residents) can be detained without bond and deported. The bill also increases the penalty for undocumented individuals who are involved in 'crime of violence' and 'drug trafficking' offenses.

Finally, the bill authorizes the Department of Homeland Security to input the names of potentially millions of civil immigration violators into the National Crime and Information Center (NCIC) database.

A copy of the House bill can be found at:

The NCIC amendments can be found at: and

In the Senate, Senator Feinstein has introduced the Gang Prevention and Effective Deterrence Act of 2005 (S. 155). While the Senate bill does not currently contain the troubling provisions described above, we remain concerned that Senators could add these provisions when the bill is marked up or conferenced.

A copy of the bill can be found at:

Questions? Contact Shoba Sivaprasad Wadhia e-mail: or Marshall Fitz e-mail:

ACTION: The American Immigration Lawyers Association has a great action alert:


'CLEAR Act' Amendments
Amendments to the DHS Authorization Bill (H.R. 1817) inappropriately enlist state and local police in the enforcement of federal immigration laws.

These amendments passed the House on May 18. The 'MOU' amendment authorizes the appropriation of $40,000,000 to pay for training state and local agencies that enter into Memorandums of Understanding (MOUs) with the federal government to enforce immigration laws. While it ostensibly makes sense for the federal government to pick up the tab if local agencies do federal work, encouraging more MOUs around the country would have a detrimental effect on immigrants' access to police protection.

This amendment can be found at:
Second, the 'Inherent Authority' amendment legislates the 'inherent authority' of police to enforce immigration laws even outside of an MOU.

This attempts to get around confusion and legal challenges surrounding a controversial 2002 Bush Administration move to involve state and local police in civil immigration law enforcement despite long-standing legal analysis and policy that held their role as separate and related to criminal enforcement alone.

A copy of this amendment can be found at:

In an important victory, an additional local police amendment (penalizing states and localities that have confidentiality policies in place) failed on the DHS Appropriations bill.

It remains to be seen how and if the Senate takes up similar proposals. The Senate version of the 'gang' bill (see above) or an immigration reform proposal (see below) are possible vehicles on which these amendments can be attached.

Thus, it remains critical for advocates to urge their representatives to oppose any and all variations of the CLEAR Act.

Updated materials and calls to action will be sent around on an email list maintained by the National Immigration Forum.

To get on that list, or with any questions on this topic, contact Lynn Tramonte e-mail:

Kyl-Cornyn Enforcement Proposal: Last week, Senate Immigration Subcommittee Chair John Cornyn (R-TX) unveiled an outline of his legislative agenda on immigration enforcement. Senators Cornyn and Jon Kyl (R-AZ) have been working on an immigration bill that would also include a limited worker program.

The released enforcement proposal contains troubling provisions regarding local enforcement of federal immigration laws; indefinite detention of non-citizens; and expedited removal, among others.

A summary of this proposal can be found at:

A copy of the legislative text is not yet available.

Questions? Contact Lynn Tramonte e-mail: or Michele Waslin e-mail:


Administrative Advocacy
Advocates continue to cultivate relationships with DHS staff, including new leaders in the Department. One group of advocates focuses its efforts on civil rights and civil liberties matters in DHS. Advocates meet regularly with the officer for civil rights and civil liberties and the Inspector General (IG).

The subject matter at meetings include due process issues (detention without charge and service of notice); selective enforcement (special registration and 'voluntary' FBI interviews); detention issues (detention standards and alternatives to detention); and immigration enforcement by state and local police.

Our current work is focused on the IG's audit of detention facilities holding immigrants and drafting some of our longstanding recommendations to DHS into regulatory language.

To plug into the DHS Civil Rights/Civil Liberties Committee, please e-mail Shoba Sivaprasad Wadhia at e-mail:

Similarly, a working group of enforcement officials within DHS-among them Under Secretary Hutchinson, Assistant Secretaries Garcia and Bonner, and others-have met to coordinate policy on enforcement-related issues.

Advocates have raised a number of substantive issues with this group, including: implementation of the detention standards; asylum seekers and fraudulent documents; refugee employment authorization documents; post 9/11 tracking initiatives (NSEERS and US-VISIT); and expedited removal.

To plug into the DHS Enforcement Committee, please e-mail Christina DeConcini at e-mail:

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