Immigration: analysis of the major provisions of H.R. 418, the REAL ID Act of 2005.(Column)

Summary

During the 108th Congress, a number of proposals related to immigration and identification-document security were introduced, some of which were considered in the context of implementing recommendations made by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) and enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458). At the time that the Intelligence Reform and Terrorism Prevention Act was adopted, some congressional leaders reportedly agreed to revisit certain immigration and document-security issues in the 109th Congress that had been dropped from the final version of the act.

On January 26, 2005, Representative James Sensenbrenner introduced H.R. 418, the REAL ID Act of 2005. H.R. 418 contains a number of provisions related to immigration reform and document security that were considered during congressional deliberations on the Intelligence Reform and Terrorism Prevention Act, but which were ultimately not included in the act's final version. H.R. 418 also includes some provisions that were not considered during final deliberations over the Intelligence Reform and Terrorism Prevention Act.

This report analyzes the major provisions of H.R. 418, which would, inter alia, (1) modify the eligibility criteria for asylum and withholding of removal; (2) limit judicial review of certain immigration decisions, (3) provide additional waiver authority over laws that might impede the expeditious construction of barriers and roads along the U.S.-Mexican border near San Diego; (4) expand the scope of terror-related activity making an alien inadmissible and deportable (removable), as well as ineligible for certain forms of relief from removal; and (5) require states to meet certain minimum security standards in order for the drivers' licenses and personal identification cards they issue to be accepted for federal purposes (a bill by Representative Tom Davis, containing only the provisions relating to drivers' licenses and personal identification cards, has also been introduced as H.R. 368, the Driver's License Security and Modernization Act). This report describes relevant current law relating to immigration and document-security matters, how H.R. 418 would alter current law if enacted, and the degree to which the bill duplicates existing law. It will be updated as events require.

 
Contents 
 
I. Preventing Terrorists from Obtaining Asylum or Withholding of 
   Removal 
     Standards for Granting Asylum 
          Current Law 
     Standards for Granting Withholding of Removal 
          Current Law 
          Changes Proposed by H.R. 418 
     Standards of Judicial Review for Certain Determinations 
          Current Law 
          Changes Proposed by H.R. 418 
     Judicial Review of Denials of Discretionary Relief 
          Current Law 
          Changes Proposed by H.R. 418 
     Repeal of the Study and Report on Terrorists and Asylum 
          Current Law 
          Changes Proposed by H.R. 418 
II. Waiver of Laws to Facilitate Barriers at Border 
          Current Law 
          Changes Proposed by H.R. 418 
III. Inadmissibility and Deportability Due to Terrorist and 
     Terrorist-Related Activities 
     Definition of "Engage in Terrorist Activity" 
          Current Law Defining "Engage in Terrorist Activity" 
          Changes Proposed by H.R. 418 to the Definition of "Engage in 
              Terrorist Activity" 
     Definition of "Terrorist Organization" 
          Current Law Defining "Terrorist Organization" 
          Changes Proposed by H.R. 418 
     Terror-Related Grounds for Inadmissibility of Aliens 
          Current Law 
          Changes to Terror-Related Grounds for Inadmissibility Proposed 
              by H.R. 418 
     Terror-Related Grounds for Deportability of Aliens 
          Current Law 
          Changes Proposed by H.R. 418 
     Consequences of Terror-Related Activities on Eligibility for Relief 
          from Removal 
          Asylum 
          Withholding of Removal 
IV. Improved Security for Drivers' Licenses and Personal 
     Identification Cards 
          Current Law 
          Changes Proposed by H.R. 418 

The 109th Congress is considering several issues carried over from the 108th Congress, including certain issues related to immigration enforcement and identification-document security. During the 108th Congress, a number of proposals were made to strengthen identification-document security and make more stringent requirements for alien admissibility and continuing presence within the United States. (1) Some of these proposals were considered in the context of implementing recommendations of the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) to improve homeland security, and were enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004. (2) At the time that the Intelligence Reform and Terrorism Prevention Act was enacted, some congressional leaders reportedly agreed to revisit certain immigration and document-security issues in the 109th Congress that had been dropped from the final version of the act. (3)

On January 26, 2005, Representative James Sensenbrenner introduced H.R. 418, the REAL ID Act of 2005. H.R. 418 contains a number of provisions related to immigration reform and document security that were considered during congressional deliberations on the Intelligence Reform and Terrorism Prevention Act, but which were ultimately not included in the act's final version (a bill by Representative Tom Davis, containing only the provisions of H.R. 418 relating to drivers' licenses and personal identification cards, has also been introduced as H.R. 368, the Driver's License Security and Modernization Act). (4) H.R. 418 also includes some provisions that were not considered during final deliberations over the Intelligence Reform and Terrorism Prevention Act.

This report analyzes the major provisions of H.R. 418, the REAL ID Act of 2005. It describes relevant current law relating to immigration and document-security matters, how H.R. 418 would alter current law if enacted, and the degree to which the bill duplicates existing law.

I. Preventing Terrorists from Obtaining Asylum or Withholding of Removal (5)

The 9/11 Commission Report (6) documented instances where terrorists had exploited relief for aliens in the form of asylum or withholding of removal to enter and remain in the United States. (7) Although the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (8) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (9) amended asylum procedures to reduce fraudulent claims and limited judicial review of removal orders, provisions in H.R. 418 would again amend the Immigration and Nationality Act (INA) (10) for the purpose of further diminishing the prospect of terrorists using the immigration system to their advantage.

Standards for Granting Asylum

Current Law. Section 208(b) of the INA (11) provides that the Attorney General may grant asylum to an alien who he determines is a refugee as defined in [section] 101(a)(42)(A) of the INA, which defines a refugee as a person who is persecuted or who has a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group, or political opinion. (12) An alien who is physically present or arrives in the United States, regardless of the alien's immigration status, may apply for asylum. Although the burden of proof is not currently explicitly described in the INA, regulations at 8 C.F.R. [section] 208.13(a) and (b) place the burden of proof on the asylum applicant, as did previous statutory provisions. (13) Also, case law places the burden of proof on the asylum applicant. (14) The grant of asylum is discretionary and even if an applicant meets the burden of proof for asylum eligibility, asylum may be denied on discretionary grounds.

There are no explicit standards in the INA on determining the credibility of an asylum applicant and the necessity for corroborating evidence of applicant testimony. In the absence of explicit statutory guidelines, standards for determining credibility and sufficiency of evidence have evolved through the case law of the Board of Immigration Appeals (BIA) and federal courts. However, these standards are not necessarily consistent across federal appellate courts, which may yield different results in otherwise apparently similar cases. (15) An asylum adjudicator may base an adverse credibility finding on factors such as the demeanor of the applicant or witness, inconsistencies both within a given testimony and between a given testimony and other testimony and evidence (which may include country conditions, news accounts, etc.), and a lack of detail or specificity in testimony. The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) has held that an adjudicator must make explicit the reasons for an adverse credibility finding or the court will accept the applicant's testimony as credible. (16)

Generally, an adverse credibility finding may be based in part but not solely on an applicant's failure to provide corroboration. The Ninth Circuit has held that where there is reason for an adjudicator to question the applicant's credibility and the applicant fails to provide easily obtainable corroborating evidence with no explanation for such failure, an adverse credibility finding will withstand judicial review. (17) With regard to sufficiency of the evidence, the BIA and the federal courts agree that credible testimony alone may suffice to sustain the applicant's burden of proof in some cases, but disagree on when credible testimony alone can meet the burden and when corroboration is needed. The BIA standard is that where it would be reasonable to expect corroboration, it must be provided or an explanation for failure to provide it must be given. (18) However, some circuits have criticized the BIA for failing to articulate what corroboration it expected in certain cases and why. The Ninth Circuit has adopted a standard that an applicant's credible testimony alone always suffices to sustain the burden of proof of eligibility where it is unrefuted, direct and specific. (19) One authority argues that the BIA's approach is contrary to international standards under which an asylum applicant should be given the benefit of the doubt, given the difficulties in obtaining corroborating evidence, although the applicant should try to provide any available corroborating evidence. (20) On the other hand, the U.S. Court of Appeals for the Second Circuit has asserted that the BIA standards are consistent with international standards because an applicant is supposed to try to provide corroboration for his or her claim or satisfactorily explain its absence. (21)

Currently, an alien who is inadmissible on certain terrorist grounds or who is removable for engaging or having engaged in terrorist activities is not eligible for asylum. Not foreclosed from relief is a person who is inadmissible as a member of a terrorist organization, the spouse or child of a person inadmissible on terrorist grounds, or a person who is a representative of a terrorist organization where the Attorney General has determined that there are not reasonable grounds for regarding the representative as a danger to the security of the United States. (22) As discussed below, however, changes elsewhere in H.R. 418 would much more narrowly restrict the availability of asylum to those with terrorist ties.

Changes Proposed by H.R. 418. Subsection 101(a) of H.R. 418 would amend [section] 208(b)(1) of the INA (23) by clarifying that the Secretary of Homeland Security and the Attorney General both have authority to grant asylum and by strengthening and codifying the standards for establishing a well-founded fear of persecution. These changes address the asylum process generally. Proposed changes that could specifically affect the eligibility for asylum of aliens associated with terrorist organizations are discussed elsewhere in this memorandum.

Authority of Secretary of Homeland Security. Although the Homeland Security Act of 2002 (24) and Reorganization Plan under that act (25) provided generally for the transfer of the functions of the defunct Immigration and Naturalization Service (INS) to the Department of Homeland Security, most provisions of the INA still refer to the Attorney General and/or Commissioner of the INS. Both the Secretary of Homeland Security and the Attorney General may now exercise authority over asylum depending on the context in which asylum issues arise, and [section] 101(a)(1) and (2) of H.R. 418 would accordingly amend [section] 208(b)(1) of the INA to insert references to both the Attorney General and the Secretary of Homeland Security. However, this would only address references for that particular subsection and would not amend the rest of [section] 208, which would continue to refer only to the Attorney General. It is not clear whether this omission is intended to limit the authority of the Secretary with respect to changes in asylum status or procedures for considering asylum applications.

Burden of Proof and Central Reason. Subsection 101(a)(3) of H.R. 418 would codify the existing regulatory and case law standard that the burden of proof is on the asylum applicant to establish eligibility as a refugee.

However, the subsection appears to create a new standard requiring that the applicant must establish that a central reason for persecution was or will be race, religion, nationality, membership in a particular social group, or political opinion. Neither [section] 208 nor [section] 101(a)(42)(A) of the INA nor the relevant regulation currently refers to or defines the concept of a "central reason," which appears to be a modification of established refugee/asylum laws.

Case law concerning asylum has addressed the concept of "mixed motives" for the persecution of an alien. (26) Where there is more than one motive for persecution, a person may be granted asylum as long as one of the motives is a statutory ground of persecution. For example, a person may be economically persecuted, e.g., he may receive an extortion demand. If the extortion is motivated by both a desire to obtain money and by a desire to punish the person for a political opinion, or being a member of a race, religion, nationality, or particular social group, then that person may be granted asylum. However, a person may be denied asylum where economic persecution is motivated solely by the desire to obtain money rather than for the motives enumerated in the statute. The statutory establishment of a central reason standard appears to be a modification to the mixed motives standard in some case precedents.

Corroboration and Credibility. Subsection 101(a)(3) of H.R. 418 would attempt to bring some clarity and consistency to evidentiary determinations by codifying standards for sustaining the burden of proof, determining credibility of applicant testimony, and determining when corroborating evidence may be required.

Under H.R. 418, the testimony of the applicant may suffice to sustain the applicant's burden without corroboration, but only if the adjudicator determines that it is credible, persuasive and refers to specific facts demonstrating refugee status. The adjudicator may base an applicant or witness credibility determination on, among other factors, demeanor, candor, responsiveness, inherent plausibility of the account, consistency between the written and oral statements (regardless of when it was made and whether it was under oath), internal consistency of a statement, consistency of statements with the country conditions in the country from which the applicant claims asylum, and any inaccuracies or falsehoods in such statements. The adjudicator is entitled to consider credible testimony along with other evidence. If the adjudicator determines in his/her discretion that the applicant should provide corroborating evidence for otherwise credible testimony, such corroborating evidence must be provided unless the applicant does not have it or cannot get it without leaving the United States. The inability to obtain corroborating evidence does not relieve the applicant from sustaining the burden of proof.

Given the flexibility afforded the adjudicator, it is not clear that H.R. 418 would represent either a significant departure from current case law standards for credibility and corroboration or a clear resolution of inconsistencies among case precedents in different federal appellate courts and also the BIA. The proposed new [section] 208(b)(1)(B)(ii) of the INA appears to permit an adjudicator to make an adverse credibility finding based on the applicant's failure to provide corroborating evidence …