Guest Column: The REAL ID Act: A Radical and Misguided Approach to Immigration Reform, by Peter Schey

Peter Schey is president of the Center for Human Rights and Constitutional Law. The Center is a non-profit, public interest legal foundation dedicated to furthering and protecting the civil, constitutional, and human rights of immigrants, refugees, children, and the poor.

 
The more extreme anti-immigrant crowd in Congress is on the verge of winning a major a victory that will harm the national security, devastate immigrant and refugee families, and substantially increase the undocumented population living in the United States.

Those who care about national security, safe highways, or humane treatment of migrants, should immediately write and telephone their Senators urging them to oppose the REAL ID Act when it comes before the Senate in the next few days.

As with many other bad legislative ideas that are enacted under the radar without hearings where the merits of proposals can be discussed and evaluated, the REAL ID (H.R. 418) recently was endorsed by the House of Representatives without a single hearing and is now on a fast track as a rider to an Emergency Supplemental Appropriations bill for Iraqi war and tsunami relief efforts to be voted on by the Senate in the coming days.

Passage by the House of the REAL ID Act is something akin to legislative vigilantism. International standards and this country’s historic commitment to legitimate asylum seekers are abandoned in favor of harsh, irrational, and probably unconstitutional policies. Bounty hunters are encouraged to track down suspected undocumented migrants. Legitimate national security concerns are cast aside in favor of irrational xenophobic policies that scapegoat migrants for the crimes of terrorists.

There are many reasons why the Senate would be well advised to reject this radical and foolish proposal.

Cracking down on asylum seekers

First, the REAL ID Act will deny refuge to those fleeing persecution by substantially heightening already stiff rules asylum-seekers must overcome to win relief from deportation. Rigorous rules have already greatly reduced the small size of successful asylum seekers in this country. In 2003, the most recent year for which the US Citizenship and Immigration Services (CIS) makes statistics available, only 15,470 migrants of all nationalities were granted asylum by the CIS. That was a major decrease in approved cases from the 25,773 granted in 2002, 28,689 in 2001, and 22,859 in 2000. The numbers of asylees granted lawful permanent resident status has also decreased substantially over recent years, with 44,927 cases approved in 2003, compared with 126,084 in 2002, 108,506 in 2002 and 65,941 in 2001.

The proponents of the REAL ID law will only be happy when these numbers approach zero. However, as virtually all migration experts understand, when people are fleeing persecution, torture, or death, insurmountable asylum laws on a country’s books will not stop the migrants’ flight to freedom. Instead, these migrants will simply live in undocumented status, glad to be alive even if they’re living underground, surviving in a black market economy, and subject to exploitation in a multitude of ways. I have yet to meet an asylum seeker who studied U.S. asylum law before fleeing his or her persecutors and entering this country in search of safe haven.

The REAL ID will also violate binding obligations the United States has undertaken under the several international instruments, including the United Nations Protocol Relating to the Status of Refugees which provides, in part, that no state shall deport any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or owing to such fear, is unwilling to return to it.

In terms of the fight against terrorism, there is no reason to believe any potential terrorist would ever come to the United States and seek asylum as his or her ticket into the country. It is unquestionably far easier for a potential terrorist to come enter this country as a tourist or foreign student. Asylum applicants must provide a wide range of detailed information about their backgrounds not required of applicants for other visas. It is also well known that asylum seekers are detained at our air and sea ports pending review of their cases. Terrorists are not looking for ways to be detained by the U.S. Government the moment they arrive here.

The notion that the national security is in any way served by making it more difficult than it already is to obtain asylum in this country is ludicrous. It will simply add to an already large population of undocumented migrants who live in this country without the Government knowing who they are, what they are doing, or where they live. That will obviously not help the nation’s security in any way.

Cracking down on migrants freedom of speech

The REAL ID Act next aims its hammer at non-citizens who have the temerity to support liberation struggles in their home countries or make donations for things like tsunami relief to non-military social services groups that are linked to armed groups fighting to overthrow repressive regimes. Under the REAL ID Act, Nicaraguans who supported the U.S-backed “Contras” fighting to overthrow the Sandinista Government would all be tossed out of the United States. So would those who supported Nelson Mandela’s African National Congress, or who sent money to a fund to win Mandela’s freedom from a life sentence in prison.

This portion of the REAL ID Act is a real gift to dictators and repressive regimes all around the world. Many of the same anti-immigrant legislators who seek to ban migrants from supporting struggles for democracy in their home countries are the staunchest defenders of the Second Amendment’s right to bear arms in the United States. They obviously agree that the use of arms in the American Revolution and other revolutions against repressive regimes throughout history were fully justified. They forget that even the preamble to the Universal Declaration of Human Rights recognizes the legitimacy of “rebellion against tyranny.” Nevertheless, the REAL ID Act tells the world’s repressive regimes and dictatorships that migrants fleeing to the United States will be prohibited on pain of deportation from in any way supporting those fighting to topple these regimes. Indeed, migrants will not even be permitted to support non-military groups providing social services to suffering communities if such groups have any links to grousp engaged in armed struggles to overthrow brutal dictatorships.

This policy of course in no way helps the national security unless one believes that our security is somehow mysteriously enhanced by supporting dictatorships around the world. Indeed, support of repressive regimes, in this case by muzzling their opponents in the United States, may if anything encourage terrorist acts against the United States.

The federal judiciary is out of control – let’s hammer migrants to ease Congressional frustration

Next, unable to secure their pound of flesh from an independent judiciary they consider out of control, it is relatively easy for frustrated anti-immigrant legislators to take a slap at the judiciary when it comes to non-citizens. The REAL ID Act restricts a federal judge’s authority to review cases involving migrants who have been treated unlawfully by the Department of Homeland Security. Most troubling, the law would take away a federal judge’s ability to temporarily halt a deportation while the judge was reviewing an appeal of the migrant’s case. This is like passing a law that prohibited any federal judge from granting Terri Schiavo’s parents a temporary stay to save her life while the court reviewed their appeal.

Under present law a federal judge may only grant a temporary stay of deportation if the judge is convinced that a migrant’s appeal raises substantial issues and establishes a likelihood of success on the merits of the appeal. This rule protects migrant’s with legitimate appeals from premature deportation while also safe-guarding against delay in the execution of a deportation order if the appeal appears to have little merit.

Many of the same legislators who believed that a person in a 15-year vegetative state should in effect have every possible access to federal appeals so that a life would not be wrongfully ended, have no trouble sending an asylum seeker back to his or her persecutors even in the face of death while his useless appeal remains pending before a powerless judge. Migrants must now it seems pay the price for Congress’ frustration with constitutional rules relating to the historic writ of habeas corpus, the separation of powers, and independence of the judiciary.

Cracking down on migrant drivers licenses – let’s support unsafe streets and highways and make sure we cannot track down terrorists

Next the REAL ID turns its anti-immigrant legislative hammer on immigrants’ ability to get drivers licenses. The proposed law ignores the fact that in December 2004 the Congress passed the The Intelligence Reform Act, which includes detailed and comprehensive federal standards on state-issued driver’s licenses and IDs to improve security and reduce fraud. The provisions of the Intelligence Reform Act were recommended and endorsed by the 9/11 Commission.

Under the proposed new law, several million immigrants, including those who have played by the rules and come forward to apply to legalize their status, will be cut off from driving legally regardless what their state laws require. Do the supporters of the REAL ID Act truly believe that these migrants will immediately sell their cars and stop driving to work to support their families because a new federal law takes away their driver’s licenses?

For the most part people drive to get back and forth to work, and people work to survive and support their families. It should be reasonably clear to any thinking person that if the REAL ID Act is enacted into law, the vast majority of migrants will simply keep driving on our streets and highways without testing, licenses, registration, or insurance. The REAL ID Act is a good idea if you own a morgue and support traffic deaths, or an insurance company and support high uninsured motorist premiums.

From the standpoint of national security, this portion of the REAL ID Act, like many of its other provisions, will simply drive people underground and steer them clear of government information data bases, including DMV records, that are used in the fight against terrorism. Thanks to the REAL ID, unlike the 9/11 terrorists, the next round of terrorists in this country won’t even have DMV records to tell us who they are, where they’ve lived, or what their fingerprints look like. Under the REAL ID law, the next round of terrorists will be using easily obtained fake drivers licenses. There will be no DMV records to tell us where they have lived or are living now, or what their fingerprints look like. Usama Bin Laden should be chuckling at this proposal.

Supporting private vigilantism – let’s get some bounty hunters to round up those migrants

Next, in a nod to the recent swell in anti-immigrant vigilantism by xenophobic private militias operating along the U.S.-Mexico border, the REAL ID Act will make migrants fair game for private bounty hunters who are provided unprecedented authority to "pursue, apprehend, detain and turn over" immigrants subject to orders of removal. This new writ of arrest dispensed to untrained and unsupervised private citizens will certainly increase vigilantism and lead not only to wrongful and violent chases, detentions, and arrests, but also lawsuits for false arrests against the federal Government. Enforcing the nation’s immigration laws is best left to trained and supervised officers of the Department of Homeland Security, not private bounty hunters.

Fortress America – let’s build a Berlin Wall in a place no terrorists are likely to enter the country

Finally, in order not to miss any really bad idea, the REAL ID Act turns its attention on irregular migration across the Mexico-US border. Rather than including any rational policy change to reduce the flow of unlawful border crossing, the REAL ID instead places its trust in a fortified “fence” along our borders with Mexico and Canada.

Migrants have been crossing fences and barriers for thousands of years in order to feed their families, reunite with their families, or escape persecution. Those who support a Berlin Wall solution to this country’s immigration policy failures should better understand the family values that drive migrants to cross dangerous and difficult frontiers in order to join their families or find work so their families at home may escape extreme poverty.

A rational solution to unlawful border crossing might include, for example, serious enforcement of penalties against employers who hire undocumented workers, a realistic adjustment of the quotas under which people may immigrate lawfully, and a major reduction in CIS backlogs that leave people in undocumented status for many years forcing them to cross the border illegally whenever they need to be with ill or dying relatives or simply visit their families. The powerful “push” factors that encourage undocumented migrants to enter the United States unlawfully, combined with the “pull” factors of employment and family reunification, will always trump the fences that anti-immigrant policy makers may construct. 

Building a fence along the Mexico and Canada borders is nothing more than a wasteful distraction in the fight against terrorism. It is like closing a back door to your house while leaving the front door wide open. Foreign terrorists are far more likely to enter the country “legally,” rather than risk apprehension at the time of entry by crossing the border without inspection. Furthermore, a fence without guards is easily climbed over or tunneled under. Neither the White House nor the Congress have ever agreed to fund anything close to the number of Border Patrol agents required to effectively guard the U.S. borders.

Conclusion

Mark Twain once said that to the man who only has a hammer, everything begins to look like a nail. That, unfortunately, is the problem with the authors of the REAL ID Act. Their sledge-hammer approach to immigration reform is counter-productive from the standpoint of the national security, and inhumane in its treatment of migrants who may rightfully seek benefits under existing federal law and international treaties.

It is worth noting that none of the ideas in the REAL ID Act come from the 9/11 Commission’s comprehensive report or national security experts.

If enacted, the REAL ID will swell the numbers of undocumented migrants living in this country, with no federal or state agencies knowing who they are, where they work, or where they live. That may help Al Qaeda in its pursuit of terrorism, and will also be welcomed by employers across the land who exploit undocumented workers to increase profits. Rather than reduce the number of undocumented migrants living here, the REAL ID Act will increase the size of this population by blocking avenues to come forward and legalize their status. At the same time, rather than in any way helping in the fight against terrorism, the REAL ID Act will be welcomed by repressive regimes around the world as well as criminals considering a terrorist operation in the United States.

The REAL ID Act is full of real dim-witted and dangerous ideas that should be forcefully rejected by the Senate and the House-Senate Conference Committee that will soon decide the fate of the Emergency Supplemental Appropriations bill for Iraqi war efforts and tsunami relief efforts. Senators should think about immigration policy reform with their heads, not with the hammer offered them by the House authors of the REAL ID Act.

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