The Real ID Act: Keeping Documents from the Undocumented

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States issue driver’s licenses under the constitutional authority of the Tenth Amendment. Congress enacted the REAL ID Act[1] (“the Act”) in 2005 creating standards for state-issued driver’s licenses, including evidence of lawful status. On May 11, 2005, President Bush signed into law the “Emergency Supplemental Appropriation for Defense, the Global War on Terror, and Tsunami Relief, 2005” (H.R. 1268, P.L. 109–13), which included the “Real ID Act of 2005.”[2] The Act was drafted with the intent to address ongoing security concerns, but the Act has an intensely negative impact on approximately over 10.1 million unauthorized immigrants, with a majority of unauthorized immigrants being of the Latino/a/x community.[3]

Section 202(c)(2)(B) of the Act requires states to show evidence of an individual’s “lawful status” by way of being either a citizen or permanent or temporary lawful alien. Effective January 22, 2018, driver’s licenses issued by states that are not compliant with the Act or haven’t been granted an extension will be denied by the Transportation Security Administration and can’t be used to fly in the United States.[4] The Act imposes prescriptive federal driver’s license standards that will cost states a tremendous amount of money. Washington is one of a minority of states that allow undocumented immigrants to get a driver’s license.[5] As indicated by the chart, only a few states do not comply with the Act; many of which are due to the high number of undocumented individuals that reside in the state.

[6]

The basis behind the Act is grounded behind the idea that it will be preventing fraud and limiting the number of undocumented individuals within the US. But in actuality an underlining purpose of this is really to find undocumented individuals so that they can be tracked easier and eventually deported. This requirement will simply make an already difficult life even harder. It will hinder free movement within the country (i.e. airports) and creates a system where undocumented workers are restricted from doing things that American citizens take for granted such as traveling, seeking employment, drinking alcohol, calm interactions with police, and the simplest thing…driving. The Act grossly oversimplifies a very complex immigration system and the only approved methods of proving citizenship provides only a short list of acceptable documents thus excluding many who are in the United States under a lawful status. The Act will unfairly deny driver’s licenses to many individuals.

With regard to people losing access to be able to drive, Washington is planning on creating a two-tiered driver’s license system where one is in compliance with the Act and one that doesn’t abide by the Act.[7] Washington state already offers, but does not mandate, enhanced driver’s licenses and IDs that require proof of U.S. citizenship and are valid under the federal law. Starting in July 2018, the state’s standard licenses — which aren’t in line with the federal requirements — will be marked to indicate they are not REAL ID compliant and thus not acceptable for certain purposes by federal authorities. Residents will have a choice of which license they want. Those with the noncompliant licenses will need additional documentation — such as a passport, permanent resident card or military ID — to board domestic commercial flights and for other federal purposes.[8] This would allow undocumented individuals to have the right to drive. However, those driver’s licenses will not be accepted at with the Transportation Security Administration, therefore, hindering the individual’s ability to travel freely throughout the United States.

Another reason why the Act negatively affects the Latinx community is because the immigration status — or lack thereof — forces a moving target on the backs of undocumented individuals. Although Washington and other states are creating statutes to try and protect undocumented individuals, this still places a target on their backs. With data becoming easier and easier to access, giving authorities the ability to see who has an Act compliance driver’s license immediately alerts them to the potential for an individual’s undocumented status. An undocumented status could mean increased harassment for these individuals.

There are substantial privacy implications that also come to fruition with the Act. It increases the risk of identity theft, exposes sensitive personal data of all driver’s license applicants to theft, and although there may be background checks on Department of Motor Vehicles (DMV) employees, it does not prevent abuse. Giving DMV employees access to immigration status provides for one more piece of information that can be used in identity theft, whether through unauthorized access of DMV records and files or by the employees themselves misusing the information.

An alternative framework to the Act would be to have extra-regulatory dynamic guidance on acceptable documents of status. The Act does not afford the opportunity for individuals, who are legally in the United States and do not possess the appropriate citizenship proof documents, to proof citizenship in alternative methods. There needs to be an exceptions process and the DMV should allow expired visas and passports to serve as proof. Many people forget to renew their passports and if this happens, those individuals would not be able to get access to an Act compliant driver’s license. Furthermore, the Act should allow I-94[9] forms as proof of status. This form would easily satisfy an individual’s proof of authorized travel and ensure compliance.

In conclusion, the Act is a discriminatory framework designed to identify individuals who are “undocumented” or “illegal” within the United States of America. I could not imagine being able to do the simplest of things such as travel freely or purchase alcohol. Although one could argue that those freedoms would be afforded by providing another form of identification, I’ve been witness to businesses turning down individuals from entry into 21 and over establishments because they were not able to provide a state issued identification or a passport. All in all, this is blatant discrimination against human beings and it is wrong on so many levels.

[1] http://www.ncsl.org/research/transportation/real-id-act-of-2005.aspx

[2] http://www.ncsl.org/research/transportation/history-behind-the-real-id-act.aspx

[3] https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US

[4] http://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-to-immigrants.aspx

[5] https://www.huffingtonpost.com/entry/washington-drivers-license-immigration_us_5a6bdb43e4b06e253267b4da

[6] http://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-to-immigrants.aspx

[7] https://www.seattletimes.com/seattle-news/politics/washington-state-granted-real-id-extension-through-mid-july/

[8] Id.

[9] https://i94.cbp.dhs.gov/I94/#/home

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