On January 26, 2005, Rep. James Sensenbrenner (R-WI) introduced the REAL ID Act along with 115 co-sponsors.  Rep. Sensenbrenner opposed the intelligence reform bill passed last year by Congress because it did not include provisions curtailing the rights of immigrants.   These provisions were unrelated to the recommendations of the 9/11 Commission.  After a very contentious debate, the proposed anti-immigrant provisions were omitted from the final bill; but the House leadership promised Rep. Sensenbrenner that these provisions would be included in future legislation.

The REAL ID Act includes the anti-immigrant provisions that did not survive the intelligence reform debates.  The Act is expected to be attached as an amendment to the tsunami relief legislation or to the Iraq war supplemental appropriations bill as early as this Wednesday -- February 9, 2005.

The REAL ID Act, H.R. 418, includes the following provisions:

Section 101.  This section changes the standard under which an immigrant may receive asylum in the United States.  It would require that asylum applicants prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be the "central motive" in persecuting the applicant; it would no longer be sufficient to demonstrate that these factors are the partial motive for torture, as required in the existing law.  For example, a Tibetan monk who faces a sentence of forced labor in a Chinese labor camp would have to show not only that the sentence was motivated "in part" by the monk’s ethnicity or religion, but that it was the "central motive."  If the "central motive" was to provide profit for the company that uses the forced labor, the monk would be ineligible for asylum.

This section of the law requires a showing of corroborating evidence to prove persecution, regardless of whether providing such evidence may subject the asylum applicant to further abuses.  It also authorizes credibility claims to be based on the applicant’s demeanor; severely limits judicial review of discretionary judgments or decisions made by immigration officials; and repeals provisions in the intelligence reform bill passed last year that require study of problems in the asylum system.

People who pose a danger to our national security are already barred from receiving asylum in the United States.  This provision would return a torture victim to the torturer if the victim cannot establish the principal, or “central,” motive of the torturer.  Likewise, the torture victim may be banished if his or her demeanor appears not to reflect what an immigration judge expects from an asylum applicant. 

Sections 103 and 104.  These provisions significantly expand the terrorism-related grounds for refusing admission to, or for deporting, non-citizens. Under H.R. 418, lawful permanent residents who have lived in the United States for years may be deported for providing non-violent, humanitarian support to organizations that are subsequently labeled as "terrorist" by the government -- even though such support was completely legal at the time it was provided.  Moreover, the REAL ID Act expands the Patriot Act by eliminating the requirement that an immigrant who supports a non-designated "terrorist" group must also support the group’s "terrorist activity."   H.R. 418 puts the burden on the immigrant who, for example, has given a contribution to a public-education program to prove that he is not a terrorist sympathizer.  Should the government charge the public education activity is a front for covert terrorism-related activity, the immigrant now must prove by clear and convincing evidence that he neither knew nor should have known that the organization is a "terrorist organization."

Section 202.  This section places state motor vehicle departments in the role of enforcing federal immigration laws.  State employees would be required to identify illegal immigrants and deny them driver’s licenses, regardless of state policy on the issue.  Prohibiting millions of immigrants from obtaining driver’s licenses undermines national security by pushing people into the shadows and raising the value of fraudulent drivers' licenses.

Millions of Americans and two federal courts have taken a stand against the Patriot Act.  Four states and more than 350 cities and towns, including New York City, have passed resolutions against antiterrorism measures that needlessly curtail civil liberties in the name of national security.  Two federal courts have struck down provisions in the Patriot Act, declaring them unconstitutional.  Congress should not expand the Patriot Act, but rather repeal those provisions that infringe on civil liberties and civil rights.