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 V.14 No.32 | August 11 - 17, 2005 

Feature

May I See Some Identification?

The Real ID Act will change current New Mexico driver's license laws and could pose a serious threat to civil liberties

James Sensenbrenner (R-WI) introduced the Real ID bill in the House. He insists that the law will make America safer from terrorists.
James Sensenbrenner (R-WI) introduced the Real ID bill in the House. He insists that the law will make America safer from terrorists.

Recently, Juana Perez was stopped by Albuquerque police and questioned about drinking and driving. While she talked with the policeman, La Migra, the immigration authorities, were standing near her car. She showed the officer her driver's license and wondered if the police and La Migra were working together to profile undocumented immigrants like herself.

After a few minutes of questioning, the policeman waved her on. Perez (not her real name) thought maybe this was because he saw her four boys, ages 6 to 13, in the backseat. A more likely explanation is that she had a valid New Mexico driver's license, valid car insurance and was driving legally.

To escape domestic violence, Perez moved to New Mexico (via Los Angeles) after leaving her home in Puerto Vallarta, Mexico. She hoped to improve her and her children's lives. In Mexico, it was hard to support her children, so Perez came to the U.S. illegally and with little money, searching for the fabled American Dream. Now that she's here, her family's life is better. She has a job and her kids are getting an education—yet life is still shadowed by her fears of being arrested for not having "papers." For Perez, having a valid New Mexico driver's license helps sustain her family's lifestyle in the United States.

Getting a License in New Mexico

The only reason Perez has a valid driver's license and car insurance is because of changes in New Mexico's driver's license laws that were implemented in 2003. With a license, she is less afraid of talking to the police and is able to live an ordinary life. In a city with limited public transit, she safely transports her children to school and herself to work. With a license, she does so as a law-abiding member of the community.

When the Alliance for a Safer New Mexico—composed of community organizations, immigrant support groups and law enforcement—lobbied to give immigrants the same access to a driver's license as residents with citizenship, they were thinking of people like Perez. The 2003 law allows legal and undocumented immigrants to use their Individual Taxpayer Identification Number (ITIN) to obtain a valid driver's license.

In recent years, New Mexico has expanded the availability of driver's licenses to Spanish-speaking residents and undocumented immigrants. Marcela Diaz, executive director of Somos un Pueblo Unido, an immigrant rights advocacy group in Santa Fe, says five years ago New Mexico drivers' tests weren't offered in Spanish. In 2002, the secretary of taxation and revenue began considering, on a case-by-case basis, alternate forms of documentation for legal immigrants to obtain a license. In 2003, it became law that all legal and undocumented immigrants could obtain licenses with their ITIN.

Since 2003, more than 19,000 legal immigrants and illegal immigrants (who do not have Social Security numbers) have obtained New Mexico driver's licenses, according to the Department of Tax and Revenue. From a public safety standpoint, this means more people are able to register their cars, obtain insurance (which requires a driver's license number), take DWI prevention courses and be identified at traffic stops. Rachel Lazar, community organizer at Enlace Communitario, an Albuquerque organization that serves Spanish-speaking victims of domestic violence and promotes immigrant rights, says the 2003 state law also improves community policing. Driver's licenses make people feel safer, improving communication between immigrants and law enforcement and making it more likely that people will report crimes and stay at the scene, she says.

Peter Olson, spokesperson for the Department of Public Safety, says the 2003 law helps law enforcement because, "it's much better to know who people are."

Real ID

While the 2003 state law was geared toward improving public safety, the new federal Real ID Act, signed into law by President Bush in May of this year, will nullify New Mexico driver's license laws and could prevent undocumented immigrants from obtaining licenses. The federal requirements in Real ID, which will become law by 2008, are numerous and complicated, but in theory they too were designed to improve public safety.

The act changes driver's license laws for all citizens and immigrants nationwide, expands the power of the Department of Homeland Security, requires state departments of motor vehicles to monitor immigration status and store personal information on all U.S. residents, and restricts immigrants' access to asylum.

Congress passed the Real ID Act to standardize state driver's licenses to help prevent identity fraud, to hinder terrorists from abusing asylum laws and to allow the construction of additional barriers along the U.S./Mexico border. The concern about driver's licenses is motivated by the fact that some of the 9/11 hijackers used driver's licenses to board aircraft. The Real ID Act was also a response to the 9/11 Commission's final report, which recommended stronger immigration enforcement and federal standards for issuance of driver's licenses, birth certificates and Social Security cards.

Supporters of Real ID, including Rep. James Sensenbrenner (R-WI), who introduced the bill in the House, say the law will make America safer from terrorists. Sensenbrenner says, "American citizens have the right to know who is in their country, that people are who they say they are and that the name on the driver's license is the real holder's name, not some alias."

Opponents of Real ID, however, say it unnecessarily targets immigrants, invades the privacy of all citizens, will place a burden on states' finances and, in the end, does nothing substantial to improve national security. They also claim that Real ID is a de facto national ID card program. A broad, bipartisan coalition of groups has opposed Real ID, including the American Civil Liberties Union, the American Conservative Union, Amnesty International, the Electronic Privacy Information Center, the AFL-CIO and Gun Owners of America.

The Real ID Act of 2005 makes Perez feel like more doors are being closed for undocumented immigrants like herself, who don't intend to break any laws while they are in the United States. Perez volunteers as a community educator with Enlace Communitario. Sometimes she wonders if she should leave the country, but she's chosen to stay for the sake of her family. In that, and the work she does for her community, Perez says she isn't doing anything wrong. She won't let legal barriers like the Real ID Act force her to return to Mexico where economic opportunities cannot compare to her life here. "It's better that I stay," she says, "if that's what God wishes."

Anna Vargas, a legal immigrant from Jalisco, Mexico, who also does domestic violence education work in her community, says the 2003 New Mexico law made it more likely for women to report abusers. She worries Real ID may change this. "It's a security issue," she says, "[undocumented immigrants are] not going to be able to go to the law." She adds that it will be harder for the police to do their work, because immigrants and the police won't trust each other. "We're not going to be able to trust [anybody]," says Vargas. "My concern will be safety more than anything."

Additionally, opponents complain that Real ID overrides the 2004 Intelligence Reform and Terrorism Prevention Act, which was meant to address the 9/11 Commission's final report suggestions. The 2004 law empowered the secretary of transportation and the secretary of homeland security to issue regulations for federal acceptance of driver's licenses, but the act specifically said the regulations should not infringe on the state's power to decide who could get a license.

The main reason civil liberties and privacy groups such as the ACLU and the American Conservative Union criticize the act is because they oppose any sort of national ID system. Storing personal information on MVD databases that are linked between all 50 states could increase opportunities for identity theft, they say. Furthermore, Real ID requires that licenses are encoded with personal information and are machine-readable.

For immigrants, Real ID also puts a significantly heavier burden on asylum-seekers to prove they have been persecuted. The law's language is vague, although it appears the applicant must now establish a central reason for persecution—such as race, religion, nationality or membership in a certain social or political group. Previous asylum laws allowed more consideration of "mixed motives" for seeking asylum. Real ID also makes it harder to overturn an immigrant judge's decision about whether an asylum-seeker's application and testimony is credible.

A Set of Assumptions

The Real ID Act operates on three assumptions. First, that more "documentation" of United States residents means greater national security. Second, that fewer immigrants means greater national security. Third, that increasing federal power over states will aid homeland security efforts.

Supporters of the Real ID Act argue that it is not a threat to civil liberties because state driver's licenses already act as national IDs. In a May 5 article, editors of the National Review (a conservative Washington-based magazine) contended, "Setting minimum federal standards, while leaving the states basically in charge of issuing the licenses/IDs is obviously the best way forward, and represents an appropriate mix of federal and state roles. ... Besides, the real-world options before us are: Improve the current dysfunctional, but decentralized ID system, or watch Washington take over the whole thing after the next terrorist attack."

In an article published in the Washington Times, former Homeland Security Secretary Tom Ridge said it made sense to "ask the states to buy into a baseline set of national standards." Previously, however, in a September 2004 address at Johns Hopkins University, Ridge said, "The legislation that created the Department of Homeland Security was very specific on the question of a national ID card. They said there will be no national ID card."

Are Illegal Immigrants the Problem?

Critics complain that none of the new Real ID rules, if properly enforced, would have done anything to prevent the terrorist attacks of 9/11. All of the hijackers entered the country with proper immigration documents, although some documents had been obtained fraudulently. Several hijackers used fraudulent statements of residency to obtain driver's licenses, but the hijackers were all legal, documented immigrants. Under the Real ID Act, they might still have been able to obtain legal—if temporary—licenses.

So what's the real point of Real ID? Díaz says this is an example of legislation built around a social and political context that falsely ties immigrants, particularly Spanish-speaking immigrants, to terrorism and crime.

Opponents also say the law is anti-immigration legislation that increases the powers of the federal government without offering any productive means for reforming immigration policy. Until the United States addresses the cause, Lazar says, it seems unlikely that people will stop entering the country illegally, despite increased security. Similarly, denying driver's licenses will not keep immigrants from driving.

Seizing Power from the States

Congress passed the Real ID Act this spring and President Bush signed it into law on May 11. Unfortunately, the act became law with little debate or public discussion. In the Senate, because the legislation was attached to funding for troops and tsunami relief, senators had little choice but to vote for it. The Real ID Act takes effect in May 2008, but states are already discussing how to fund and implement the new federal mandates.

One of the main assumptions of Real ID is that increasing federal power and control over information improves national security. In the post-9/11 tradition of expanding federal power over states, Real ID overrides the legislation New Mexico has already passed to address driver's license issuance. Because New Mexico has already seen the positive public safety effects of the 2003 legislation, the question for New Mexico is whether public safety and privacy rights should be sacrificed for fear of large-scale terrorist attacks.

Ironically, although the Real ID Act is supposed to increase security, overriding New Mexico's 2003 laws could actually make New Mexicans less safe. By directing how states must document their residents, Real ID strips the states of their right to decide how best to enforce laws enacted to promote the safety of residents. Participation in this federal law means states will have to largely give up authority over such matters.

Because of the burden the Real ID Act will put on states, the National Conference of State Legislatures, National Governors' Association and the American Association of Motor Vehicle Administrators have all opposed it. No federal money has yet been appropriated for compensating states who choose to implement the federal law, although implementation clearly mandates increasing bureaucratic red tape.

New Mexico's Options

The legislation does allow states to essentially opt out. Yet if a state chooses not to follow the dictates of the Real ID Act, their residents will not be able to use their licenses for official federal identification. For example, if New Mexico opted out, residents could not use their driver's license for "accessing federal facilities, boarding commercial aircraft, entering power plants, and any other purpose the secretary of DHS shall determine." The scope of these "other purposes" is yet unclear, but people with nonfederal IDs might also have more trouble accessing federal benefits such as veterans' benefits or food stamps.

If states opt in to Real ID, everyone—citizens and noncitizens—will have to prove their legal status to the MVD by presenting documents proving name, date of birth, residency and Social Security number. The MVD will have to verify the authenticity of each document, which might mean calling the state in which a person was born or calling PNM to authenticate residency. All documents will then be stored by the MVD electronically, on a database connected to databases in all 50 states.

How the Real ID Act will be implemented in New Mexico has yet to be determined. Kathleen Baca, spokesperson for New Mexico's Taxation and Revenue Department, says the department is concerned about the cost to the state and the burden to individuals. At a minimum, the state would have to increase MVD staff. Because it's unclear what kind of federal funds will be available to states, or whether states will have to shoulder the costs of educating residents on the new law, Baca says the state won't implement Real ID until it has to. They expect to get further directions from the Department of Homeland Security. Until then, Baca says they'll "look at what options are left to the state."

The new law does grant some leeway, and New Mexico can explore alternatives that would still put the state in compliance with Real ID. New Mexico could choose not to institute Real ID at all, which would mean our licenses could not be used for federal purposes. A state system could also be created that leaves it up to the individual to decide whether or not to get a license that doubles as a national ID. Of course, many people already have a form of identification they can use for federal purposes, such as passports, military ID cards or green cards. So if people choose not to get a national ID driver's license, they could still use this other identification.

Real ID presents a complicated set of federal mandates that affect civil liberties, states' rights and immigrant rights. Although New Mexico residents and legislators have shown continued support for the 2003 driver's license legislation, the state must now decide how to respond to the Real ID Act by 2008.

Gov. Bill Richardson has spoken out against the Real ID Act. He says the logic of Real ID is flawed because it would actuually make it harder for states to keep track of illegal immigrants. He also says the current New Mexico law helps immigrants integrate into society. At the National Governors' Association meeting last month, Richardson said, “It's working and now it could be dismantled by a shortsighted, federal unfunded mandate

After continual reminders from President Bush that the enemies of America "hate freedom," states and advocacy organizations will be keeping an eye on freedom inside our own borders. As Real ID evolves, Benjamin Franklin's famous words deserve consideration: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

The Real ID Act of 2005:

• Requires states to enact all Real ID provisions if the state's driver's licenses are to be federally recognized. For example, federally recognized identification allows people to board planes.

• To issue federally valid driver's licenses, states must require residents to provide original documents proving identity, legal status and residency—such as birth certificates, Social Security cards and utility bills. States must then authenticate each document before issuing a license.

• Overrides state laws that allow undocumented immigrants to obtain licenses.

• Requires states to store drivers' personal identification documents in a database linking all 50 states. Licenses will also be encoded and machine-readable.

• Allows the Secretary of the Department of Homeland Security to waive all legal requirements—including environmental and health and safety laws—that interfere with the construction of barriers along the U.S. border.

• Places a heavier burden on asylum-seekers to prove they have been persecuted.

How Real ID would affect New Mexicans:

• All residents would have to provide multiple documents for identification when applying for or renewing a driver's license. Citizens who are not able to provide correct documents—such as an original birth certificate—may not be able to get a license.

• Legal immigrants would be issued a different kind of license than citizens.

• Temporary legal immigrants would receive a temporary license that expires when their visa expires, even if they are legally waiting on a visa extension.

• Undocumented immigrants would not be able to obtain a license.

• MVD workers would monitor immigration and report to the Department of Homeland Security.

• Lines at the MVD would most likely be longer.

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