Immigration: Analysis of the Major Provisions of the REAL ID Act of 2005
CRS Report for Congress
Immigration: Analysis of the
Major Provisions of
the REAL ID Act of 2005
Updated May 25, 2005
Michael John Garcia, Margaret Mikyung Lee,
and Todd Tatelman
Legislative Attorneys
American Law Division
Congressional Research Service ˜ The Library of Congress
Immigration: Analysis of the Major Provisions
the REAL ID Act of 2005
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 (P.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.
The REAL ID Act of 2005 was first introduced as H.R. 418 by Representative
James Sensenbrenner on January 26, 2005, and passed the House, as amended, on
February 10, 2005. The text of House-passed H.R. 418 was subsequently added to
H.R. 1268, the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005, which was introduced by Representative
Jerry Lewis on March 11, 2005, and passed the House, as amended, on March 16,
0, but did not include the REAL ID Act provisions. A conference report resolving
differences between the two versions of the bill, H.Rept. 109-72, passed the House
on May 5, 2005 and the Senate on May 10, 2005, before being enacted into law on
May 11, 2005. The version of the REAL ID Act (P.L. 109-13, Division B) ultimately
enacted includes most of the provisions of the REAL ID Act that initially passed the
House (though not those relating to the bond of aliens in removal proceedings),
though some changes were made to certain REAL ID Act provisions.
This report analyzes the major provisions of the REAL ID Act, as enacted,
which, inter alia, (1) modifies the eligibility criteria for asylum and withholding of
removal; (2) limits judicial review of certain immigration decisions; (3) provides
additional waiver authority over laws that might impede the expeditious construction
of barriers and roads along land borders, including a 14-mile wide fence near San
Diego; (4) expands the scope of terror-related activity making an alien inadmissible
or deportable, as well as ineligible for certain forms of relief from removal; (5)
requires 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; (6) requires the Secretary of Homeland Security to enter into the
appropriate aviation security screening database the appropriate background
information of any person convicted of using a false driver’s license for the purpose
of boarding an airplane; and (7) requires the Department of Homeland Security to
study and plan ways to improve U.S. security and improve inter-agency
communications and information sharing, as well as establish a ground surveillance
pilot program.
Contents
I. Preventing Terrorists from Obtaining Asylum or Relief from Removal .....2
Standards for Granting Asylum...................................3
Background ..............................................3
Changes Made by the REAL ID Act...........................5
Standards for Granting Withholding of Removal.....................8
Background ..............................................8
Changes Made by the REAL ID Act...........................9
Standards for Granting Other Forms of Removal Relief...............10
Background .............................................10
Changes Made by the REAL ID Act..........................11
Standards of Judicial Review for Certain Determinations..............12
Background .............................................12
Changes Made by the REAL ID Act..........................13
Judicial Review of Denials of Discretionary Relief...................13
Background .............................................13
Changes Made by the REAL ID Act..........................13
Removal of Caps on Adjustment of Status for Asylees................14
Background .............................................14
Changes Made by the REAL ID Act..........................14
Repeal of the Study and Report on Terrorists and Asylum.............15
Background .............................................15
Changes Made by the REAL ID Act..........................15
II. Waiver of Laws to Facilitate Barriers at Border ......................15
Background .............................................16
Changes Made by the REAL ID Act..........................16
III. Judicial Review of Orders of Removal.............................17
Background .............................................17
Changes Made by the REAL ID Act..........................17
IV. Inadmissibility and Deportability Due to Terrorist and Terrorist-Related
Activities ...................................................18
Definition of “Engage in Terrorist Activity” .......................19
Background .............................................19
Changes Made by the REAL ID Act..........................20
Definition of “Terrorist Organization” ...........................22
Background .............................................22
Changes Made by the REAL ID Act..........................22
Terror-Related Grounds for Inadmissibility of Aliens.................24
Background .............................................24
Changes Made by the REAL ID Act..........................25
Waiver of Certain Grounds for Inadmissibility......................28
Terror-Related Grounds for Deportability of Aliens..................29
Background .............................................29
Changes Made by the REAL ID Act..........................30
Removal ................................................32
Asylum .................................................32
Withholding of Removal...................................36
V. Improved Security for Drivers’ Licenses and Personal Identification Cards
...........................................................38
Background .............................................39
Changes Made by the REAL ID Act..........................40
Minimum Issuance Standards...............................40
Evidence of Legal Status...................................41
Temporary Drivers’ Licenses and Identification Cards............41
Other Requirements.......................................41
Trafficking in Authentication Features for Use in False Identification
Documents ..........................................42
Additional Provisions.....................................42
VI. Improving Border Infrastructure and Technology Integration...........43
Vulnerability and Threat Assessment Relating to Border Infrastructure
Weaknesses .............................................43
Establishment of a Ground Surveillance Pilot Program...............43
Enhancement of Border Communications Integration and Information Sharing
.......................................................44
Immigration: Analysis of the Major
Provisions of
the REAL ID Act of 2005
The 109th Congress has considered several immigration issues carried over fromth1
the 108 Congress, providing the impetus for the REAL ID Act of 2005. 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.2 Immigration and
identification-document security 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 some of these were enacted under the Intelligence Reform and3
Terrorism Prevention Act of 2004. However, Congress did not include all discussed
proposals, certain document-security provisions being notable among them. At the
time that the Intelligence Reform and Terrorism Prevention Act was enacted, some
congressional leaders reportedly agreed to revisit some of the dropped immigration4
and document-security proposals in the 109th Congress.
The REAL ID Act of 2005 was first introduced as H.R. 418 by Representative
James Sensenbrenner on January 26, 2005, and passed the House, as amended, on
February 10, 2005, on a vote of 261-161. House-passed H.R. 418 contained 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. House-passed H.R. 418 also included some new proposals.
The text of House-passed H.R. 418 was subsequently added to H.R. 1268, the
Emergency Supplemental Appropriations Act for Defense, the Global War on Terror,
and Tsunami Relief, 2005, which was introduced by Representative Jerry Lewis on
March 11, 2005, and passed the House, as amended, on March 16, 2005 on a vote of
388-43. H.R. 1268 passed the Senate on April 21, 2005, as amended, on a vote of
1 P.L. 109-13, Division B (hereafter cited as “REAL ID Act”.
2 See generally CRS Report RL32169, Immigration Legislation and Issues in the 108th
Congress, Andorra Bruno, Coordinator.
3 P.L. 108-458, 118 Stat. 3638 (2004). For further background, see CRS Report RL32616,
9/11 Commission: Legislative Action Concerning U.S. Immigration Law and Policy in the
4 See Mary Curtius, “The Nation; GOP Congressman Renews Push for Immigration Curbs,”
L.A. TIMES, Jan. 27, 2005, at A18.
resolve differences between the House- and Senate-passed versions of H.R. 1268.
The conference report, H.Rept. 109-72, passed the House on a vote of 368-58 on
May 5, 2005, and the Senate on a vote of 100-0 on May 10, 2005. The REAL ID Act,
as amended, was enacted into law on May 11, 2005 as P.L. 109-13, Division B.
The version of the REAL ID Act enacted into law contains most of the
provisions found in House-passed version of H.R. 418 and the version of H.R. 1268
that originally passed the House. However, some notable changes were made,
including, inter alia, (1) removing provisions relating to the release of aliens in
removal proceedings on bond; (2) making asylum and withholding of removal
eligibility and credibility standards less stringent than those proposed in earlier
versions of the REAL ID Act; (3) providing for limited judicial review of Secretary
of Homeland Security decisions to waive certain legal requirements to facilitate the
construction of barriers at the borders; (4) providing broader waiver authority to the
Secretary of State and Secretary of Homeland Security regarding terrorist-related
grounds for inadmissibility and removal; and (5) modifying, and in some cases
making more stringent, REAL ID Act provisions concerning minimum security
standards for state-issued drivers’ licenses and personal identification cards accepted
for federal purposes
This report analyzes the major provisions of the REAL ID Act of 2005, as
enacted. It describes relevant law prior to passage of the REAL ID Act relating to
immigration and document-security matters, and discusses how the REAL ID Act
altered preexisting law.
I. Preventing Terrorists from Obtaining Asylum
or Relief from Removal5
The 9/11 Commission Report6 documented instances where terrorists had
exploited the availability of humanitarian relief under immigration law.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 the REAL ID Act again amend the Immigration and Nationality
Act (INA)10 to further diminish the prospect of terrorists using the immigration
system to their advantage.
5 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
6 FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED
STATES, July 2004.
7 Id. at 72. Ramzi Yousef, one of the terrorists involved in the 1993 World Trade Center
bombing, entered the United States on a political asylum claim.
8 P.L. 104-132, 110 Stat. 1214 (1996).
9 Division C of P.L. 104-208, 110 Stat. 3009-546 (1996).
10 8 U.S.C. §§ 1101 et seq.
Standards for Granting Asylum
Background. Section 208(b) of the INA11 provides that the Attorney General
may grant asylum to an alien whom he determines is a refugee as defined in §
101(a)(42)(A) of the INA. That section 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 had not
been explicitly described in the INA prior to the enactment of the REAL ID Act,
regulations at 8 C.F.R. § 208.13(a) and (b) placed the burden of proof on the asylum13
applicant, as did previous statutory provisions. Also, case law had placed 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.
Prior to the enactment of the REAL ID Act, there had been no explicit standards
in the INA for 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 evolved
through the case law of the Board of Immigration Appeals (BIA) and federal courts.
However, these standards were not necessarily consistent across federal appellate
courts, arguably yielding different results in otherwise apparently similar cases.15
Generally, an asylum adjudicator could 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) had held that an adjudicator must make explicit the reasons for an adverse16
credibility finding or the court will accept the applicant’s testimony as credible.
11 8 U.S.C. § 1158(b) (2004).
12 8 U.S.C. § 1101(A)(42)(A) (2004).
13 See INA § 203(a)(7) between P.L. 89-236, 79 Stat. 911 (1965) and P.L. 96-212, 94 Stat.
F.2d 345 (9 Cir. 1971).
14 C. Gordon, S. Mailman, & S. Yale-Loehrer, IMMIGRATION LAW & PROCEDURE, § 34.02
(2004) (hereinafter IMMIGRATION LAW & PROCEDURE).
15 See id. § 34.02[9] for a discussion of the case law concerning evidentiary standards.
16 “It is well established in this circuit that the BIA may not require independent
corroborative evidence from an asylum applicant who testifies credibly in support of his
application.... It is also well settled that we must accept an applicant’s testimony as true in
the absence of an explicit adverse credibility finding.” Kataria v. INS, 232 F.3d 1107,th
an adverse credibility finding must be based on ‘specific cogent reasons,’ which are
substantial and ‘bear a legitimate nexus to the finding.’” Cordon-Garcia v. INS, 204 F.3dth
An adverse credibility finding could be based in part but not solely on an
applicant’s failure to provide corroboration. The Ninth Circuit had 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
had agreed that credible testimony alone may suffice to sustain the applicant’s burden
of proof in some cases, but disagreed on when credible testimony alone meets the
burden and when corroboration is needed. The BIA standard had been that where it
would be reasonable to expect corroboration, it would have to be provided or an
explanation for failure to provide it would have to be given.18 However, some
circuits criticized the BIA for failing to articulate what corroboration it expected in
particular cases and why. The Ninth Circuit had adopted a standard that an
applicant’s credible testimony alone always sufficed to sustain the burden of proof
of eligibility where it was unrefuted, direct, and specific.19 One authority argued that
the BIA’s approach was 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 asserted that the BIA standards were 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
Prior to the enactment of the REAL ID Act, an alien who was inadmissible on
certain terrorist grounds or who was removable for engaging or having engaged in
terrorist activities was not eligible for asylum. Not foreclosed from relief was a
person who was inadmissible as a member of a terrorist organization, the spouse or
child of a person inadmissible on terrorist grounds, or a person who was a
representative of a terrorist organization when the Attorney General determined that
there were not reasonable grounds for regarding the representative as a danger to the
security of the United States.22 As discussed below, however, changes made
elsewhere in the REAL ID Act more broadly restrict the availability of asylum to
those with terrorist ties.
17 Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000).
18 In re S-M-J-, Applicant, 21 I. & N. Dec. 722, 1997 WL 80984 (B.I.A. 1997).
19 Ladha v. I.N.S., 215 F.3d 889 (9th Cir. 2000).
20 See IMMIGRATION LAW & PROCEDURE § 34.02[9][c][ii][B], notes 288-292 and
accompanying text.
21 “[I]nternational standards do not conflict with the BIA’s expectation of corroborating
evidence in certain cases. The Handbook of the United Nations High Commissioner for
Refugees notes that applicants should ‘make an effort to support [their] statements by any
available evidence and give a satisfactory explanation for any lack of evidence.’” Diallo v.nd
INS, 232 F.3d 279, 286 (2 Cir. 2000).
22 While such a person may have applied for asylum, CRS has not found an instance in
which such a person was granted asylum.
Changes Made by the REAL ID Act. Subsection 101(a) of the REAL ID
Act amends § 208(b)(1) of the INA23 by clarifying that the Secretary of Homeland
Security and the Attorney General both have authority to grant asylum, and
strengthens and codifies the standards for establishing a well-founded fear of
persecution. These changes address the asylum process generally. Changes made by
the REAL ID Act that specifically affect the eligibility for asylum of aliens associated
with terrorist organizations are discussed elsewhere in this report.
Authority of Secretary of Homeland Security. Although the Homeland
Security Act of 200224 and Reorganization Plan under that act25 generally provided
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 §
101(a)(1) and (2) of the REAL ID Act accordingly amends § 208(b)(1) of the INA
to insert references to both the Attorney General and the Secretary of Homeland
Security. However, this amendment only addresses references for that particular
subsection and does not amend the rest of § 208, which continues to refer only to the
Attorney General. It is not clear whether this omission was 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 the REAL
ID Act codifies 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 at least one central reason for persecution was or will
be race, religion, nationality, membership in a particular social group, or political
opinion. Neither § 208 nor § 101(a)(42)(A) of the INA, previously or as amended,
nor the relevant regulations refer to or define the concept of a “central reason,” which
appears to be a modification of established refugee/asylum laws, although possibly
a slight one, since existing case precedents recognize similar standards. The
conference report for the REAL ID Act noted that a past proposed change to asylum
regulations would have required that a protected statutory ground be a central, not
incidental or tangential, motive for persecution.26
Case law concerning asylum has addressed the concept of “mixed motives” for
the persecution of an alien. 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
23 8 U.S.C. § 1158(b)(1) (2004).
24 P.L. 107-296, §§ 1102, 1502, 116 Stat. 2135, 2273, 2308, as amended by P.L. 108-7, Div.
L, § 105(a), 117 Stat. 11, 531 (2003).
25 At [http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf], last
visited Jan. 13, 2005.
26 H.Rept. 109-72, at 163 (2005).
persecution.27 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 standard for the importance of the statutory
motive in asylum cases has ranged from being one of the motives to being a
meaningful motive to being a principal motive. Thus, the statutory establishment of
a central reason standard appears to be a modification to the mixed motives standard
in some case precedents, but consistent with the operative standard in others.
Corroboration and Credibility. Subsection 101(a)(3) of the REAL ID Act
attempts 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 the REAL ID Act, 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 is entitled to consider credible testimony along with other evidence.
If the adjudicator determines in his/her discretion that the applicant should provide
27 IMMIGRATION LAW AND PROCEDURE § 33.04 (2004), comparing, e.g., Fadul v. INS, No.
99-2029, 2000 U.S. App. LEXIS 4952 (7th Cir. Mar. 20, 2000) (death threats by the New
People’s Army motivated by extortion efforts, not political opinion) with Chen v. Ashcroft,th
314 F.3d 995 (9 Cir. 2002)) (“It is not necessary that persecution be solely on account of
one of the forbidden grounds for an asylum applicant to secure asylum. It is enough that a
principal reason for the persecution be on account of a statutory ground”). See also Singhth
v. Ashcroft, 2004 U.S. App. LEXIS 18925, at *5 (9 Cir., Sept. 3, 2004); Girma v. INS, 283th
F.3d 664, 668 (5 Cir. 2002) (“[under a mixed motive analysis] the predominant motive for
the abuse is not determinative . . . an applicant for asylum must present evidence sufficient
for one to reasonably believe that the harm suffered was motivated in meaningful part byth
a protected ground”); Agbuya v. INS, 241 F.3d 1224, 1228 (9 Cir. 2001); Borja v. INS,th
175 F.3d 732, 734-36 (9 Cir. 1999) (en banc) (“ . . . ‘the plain meaning of the phrase
‘persecution on account of the victim’s political opinion,’ does not mean persecution solely
on account of the victim’s political opinion. That is, the conclusion that a cause of
persecution is economic does not necessarily imply that there cannot exist other causes of
the persecution.’ As the United Nations’ Handbook on Procedures and Criteria for
Determining Refugee Status says, ‘What appears at first sight to be primarily an economic
motive for departure may in reality also involve a political element, and it may be the
political opinions of the individual that expose him to serious consequences, rather than his
objections to the economic measures themselves.’ (quoting U.N. Handbook at §§ 62-64).
To quote the Board’s decision in this case, ‘An applicant for asylum need not show
conclusively why persecution occurred in the past or is likely to occur in the future.
However, the applicant must produce evidence from which it is reasonable to believe that
the harm was motivated, at least in part, by an actual or implied protected ground.’” (otherth
cites omitted, emphasis added)); Singh v. Ilchert, 63 F.3d 1501, 1509 (9 Cir. 1995)
(“Persecutory conduct may have more than one motive, and so long as one motive is one of
the statutory grounds, the requirements have been satisfied.”). See also CRS Report
RL32621, U.S. Immigration Policy on Asylum Seekers, by Ruth Ellen Wasem.
corroborating evidence for otherwise credible testimony, such corroborating evidence
must be provided unless the applicant does not have it and cannot reasonably obtain
it.28 Considering the totality of circumstances and all relevant factors, the adjudicator
may base an applicant or witness credibility determination on, among other relevant
factors, demeanor, candor, responsiveness, inherent plausibility of the account,
consistency between the written and oral statements (regardless of when they were
made, whether they were under oath, and considering the circumstances under which
the statements were made), internal consistency of a statement, consistency of
statements with other evidence of record (including the Department of State reports
on country conditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy or falsehood goes to the heart
of an applicant’s claim. There is no presumption of credibility; however, if no
adverse credibility determination is explicitly made, the applicant or witness has a
rebuttable presumption of credibility on appeal.
Given the flexibility afforded the adjudicator, it is not clear that the REAL ID
Act represents either a significant departure from 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 INA § 208(b)(1)(B)(ii), as
amended by the REAL ID Act, appears to permit an adjudicator to make an adverse
credibility finding based on the applicant’s failure to provide corroborating evidence
for otherwise credible testimony, unless the applicant does not have it or cannot
reasonably obtain it. This provision appears to be intended primarily to resolve the
difference between the BIA and the Ninth Circuit with regard to credibility and
sufficiency of evidence by adopting the BIA position with some modification
(specifying what circumstances excuse an applicant’s failure to provide
corroboration). On the other hand, the amended version of INA § 208(b)(1)(B)(iii)
generally appears to be a codification of, but not a significant change from, existing
case law permitting an asylum adjudicator to consider the totality of circumstances
including relevant factors such as demeanor, inconsistencies, and the like in making
credibility determinations, as long as they are not actually speculation or conjecture,
rather than factual observation. However, the clause providing that an adjudicator
may consider an inconsistency, inaccuracy, or falsehood regardless of whether it goes
to the crux of an asylum claim appears intended to supersede Ninth Circuit precedent
that inconsistencies, inaccuracies, and falsehoods that do not go to the heart of a
claim will not support an adverse credibility finding.29 But any such consideration
would have to take into account the totality of circumstances and relevant factors,
28 The enacted version of the REAL ID Act dropped earlier language that would have further
required that the applicant could not reasonably obtain the evidence without leaving the
United States and that the inability to obtain corroborating evidence would not excuse the
applicant from sustaining the burden of proof.
29 See, e.g., Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003) (“Minor
inconsistencies in the record that do not relate to the basis of an applicant’s alleged fear of
persecution, go to the heart of the asylum claim, or reveal anything about an asylum
applicant’s fear for his safety are insufficient to support an adverse credibility finding”).
This clause was not in the REAL ID Act as introduced.
even with the passing of the REAL ID Act.30 The clause regarding no presumption
of credibility appears to adopt Ninth Circuit precedent that presumes credibility on
appeal where neither the immigration judge nor the BIA has made an explicit adverse
credibility finding,31 with the modification or clarification that the presumption is
rebuttable.
Terrorist Exceptions to Asylum Eligibility. Subsection 101(b) of the
REAL ID Act amends § 208(b)(2)(A)(v) to provide that an alien described in the
terrorism grounds for inadmissibility and removal is not eligible for asylum, with
certain narrow exceptions noted above in preexisting law.
Effective Dates. Subsection 101(h)(1) of the REAL ID Act provides that the
references to the authority of the Secretary of Homeland Security took effect as if
enacted on March 1, 2003, which was the official date of transfer of immigration
enforcement functions from the INS to the Department of Homeland Security under
the Reorganization Plan. Subsection 101(h)(2) provides that the asylum standards
established in § 101(a)(3) and (b) of the REAL ID Act took effect on the date of
enactment (May 11, 2005) and apply to applications for asylum made on or after such
date. Therefore, the standards do not apply by statute to asylum applications filed
before the enactment of the REAL ID Act; rather, standards in preexisting case law
would apply to such claims.
Standards for Granting Withholding of Removal
Background. Subsection 241(b)(3) of the INA places restrictions on removal
to a country where an alien’s life or freedom would be threatened because of the
alien’s race, religion, nationality, membership in a particular social group, or political32
opinion. Although there are similarities between asylum and withholding of
removal, there are also significant differences. Asylum is a discretionary form of
relief, for which the standard is a “well-founded fear of persecution.” Withholding
of removal is mandatory relief from removal for those who can satisfy the higher
standard of a “clear probability of persecution,” also expressed as “more likely than
not” that one would be persecuted.33 A person who has been granted asylum has
been admitted into the United States, although the status is not a right to reside
permanently in the United States. A person who is granted withholding has not been
30 H.Rept. 109-72 at 167 (2005).
31 See Canjura-Flores v. INS, 784 F.2d 885, 888-89 (9th Cir. 1985) ( “We will continue to
remand to the Board for credibility findings when we reverse a decision in which the Board
has avoided the credibility issue by holding that a petitioner has failed to establish either a
well-founded fear of persecution or a clear probability of persecution even if his testimony
is assumed to be credible [cites omitted], or when the basis of the Board’s decision cannot
be discerned from the record [cites omitted]. When the decisions of the Immigration Judge
and the Board are silent on the question of credibility, however, we will presume that they
found the petitioner credible”). This clause was not in the REAL ID Act as introduced.
32 8 U.S.C. § 1231(b)(3) (2004).
33 Compare INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) with INS v. Stevic, 467 U.S. 407
(1984).
granted legal entry into the United States and may be more readily removed to his
country when there is no longer any threat to his life or freedom. Withholding of
removal is only specific to a particular country and therefore does not preclude
removal to another country under INA § 241(b)(1)(C). An alien granted withholding
of removal may not adjust to the status of a lawful permanent resident and the alien’s
family members are not eligible to come to the United States via the alien’s status in
the United States. In contrast, within numerical limits for asylee adjustments existing
prior to enactment of the REAL ID Act,34 an alien granted asylum could adjust status
under § 209(b) of the INA35 after being present in the United States for one year after
the grant of asylum if the alien still met the definition of refugee, was not firmly
resettled in any other country and was otherwise admissible as an immigrant (with
exemptions from certain grounds of inadmissibility). Additionally, under § 208(b)(3)
of the INA the spouse and children of an alien granted asylum, if not otherwise
eligible for asylum, may be granted asylum themselves if accompanying or following
to join the alien.36 Aside from the higher standard of proof, withholding of removal
involves similar consideration of credibility and corroboration factors37 and some of
the same issues regarding Ninth Circuit jurisprudence.38
INA § 241(b)(3)(A) enumerates certain classes of aliens who are ineligible for
withholding of removal, including aliens reasonably believed by the Attorney
General to be a danger to the security of the United States. The statute further states
that an alien who is removable for engaging in terrorist activities under §
237(a)(4)(B) of the INA39 is considered to be an alien with respect to whom there are
reasonable grounds for regarding as a danger to the security of the United States.
Changes Made by the REAL ID Act. Subsection 101(c) of the REAL ID40
Act amends § 241(b)(3) of the INA by applying to and codifying for withholding
of removal the same standards for sustaining the applicable burden of proof41 and for
assessing credibility that are used for asylum adjudications under INA §
208(b)(1)(B)(ii) and (iii), as added by REAL ID Act § 101(a)(3). The discussion
above concerning specific changes with regard to central reason, credibility
determinations, and corroborating evidence applies to this change as well. Changes
made by the REAL ID Act that specifically affect the eligibility of aliens associated
with terrorist organizations are discussed elsewhere in this report.
34 Section 101(f) of the REAL ID Act eliminates the cap for adjustment of status for asylees,
which was previously set at 10,000 persons each fiscal year.
35 8 U.S.C. § 1159(b) (2004).
36 8 U.S.C. § 1158(b)(3) (2004).
37 See IMMIGRATION LAW & PROCEDURE § 34.02[11][c].
38 The Ninth Circuit has held that with regard to withholding of deportation/removal,
administrative adjudicators improperly denied the application for lack of corroboration
where the applicant gave credible testimony. E.g., Mendoza Manimbao v. Ashcroft, 329thth
F.3d 655 (9 Cir. 2003); Canjura-Flores v. INS, 784 F.2d 885 (9 Cir. 1985).
39 8 U.S.C. § 1227(a)(4)(B) (2004).
40 8 U.S.C. § 1231(b)(3) (2004).
41 Again, the standard is “clear probability of persecution” in withholding cases.
REAL ID Act § 101(h)(2) provides that the withholding of removal standards
established in § 101(c) took effect on the date of enactment (May 11, 2005) and apply
to withholding applications made on or after such date; therefore, the standards do
not apply by statute to applications filed before the date of enactment. Only those
standards in law prior to the enactment of the REAL ID Act would apply.
Standards for Granting Other Forms of Removal Relief
Background. In addition to asylum and withholding of removal, there are
other forms of relief from removal, including cancellation of removal, voluntary
departure, withholding or deferral of removal under the United Nations Convention42
Against Torture [Torture Convention], and suspension of deportation (for those
eligible for such pre-IIRIRA relief). In addition, temporary protected status and any
applicable waivers of inadmissibility or deportability might be construed as relief
from removal. Different eligibility conditions apply to each of these forms of relief.
Cancellation of removal itself has different conditions applicable to permanent
residents, nonpermanent residents, battered spouses and children, and beneficiaries43
of the Nicaraguan Adjustment and Central American Relief Act (NACARA). The
evidentiary standards have generally not been specified in statutes. However, section
240A(b)(2)(D) of the INA (8 U.S.C. § 1229b(b)(2)(D)) does provide that the
Attorney General shall consider any credible evidence relevant to an application for
cancellation of removal for a battered spouse or child and that the determination of
what evidence is credible and the weight to be given that evidence shall be within the
sole discretion of the Attorney General.
Various regulations address burden of proof and evidentiary standards for some
forms of removal relief. Generally, the applicant for removal relief has the burden
of establishing that he or she is eligible for any requested benefit or privilege and that
it should be granted in the exercise of discretion.44 If evidence indicates that one or
more of the grounds for mandatory denial of the application for relief may apply, the
alien has the burden of proving by a preponderance of the evidence that such grounds
do not apply. The burden of proof is on the applicant for withholding or deferral of
removal under the Torture Convention to establish that it is more likely than not that45
he or she would be tortured if removed to the proposed country of removal. The
testimony of the applicant, if credible, may be sufficient to sustain the burden of
proof without corroboration. Evidence to be considered includes but is not limited
to certain factors enumerated in the regulations. The burden of proof is on the
applicant for removal relief under NACARA to establish by a preponderance of the
42 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc.
A/39/51 (1984). For a discussion of the Convention, see CRS Report RL32276, The U.N.
Convention Against Torture: Overview of U.S. Implementation Policy Concerning the
Removal of Aliens, by Michael John Garcia.
43 P.L. 105-100, § 203, 111 Stat. 2160 (Nov. 19, 1997), as amended.
44 8 C.F.R. § 1240.8(d) (2004).
45 8 C.F.R. §§ 208.16(c), 1208.16(c) (2004).
evidence that he or she is eligible for such relief.46 In certain cases a presumption of
extreme hardship applies, and in such cases, the burden of proof is on the government
to establish that it is more likely than not that neither the applicant nor a qualified
relative would suffer extreme hardship if the applicant were removed from the United
States. In those cases where a presumption of extreme hardship applies, the burden
of proof is on immigration authorities to establish that it is more likely than not that
neither the applicant nor a qualified relative would suffer extreme hardship if the
applicant were deported or removed from the United States. For temporary protected
status, the applicant must provide supporting documentary evidence of eligibility
apart from his or her own statements to meet his or her burden of proof.47 The
applicant must submit documentary evidence required in the instructions and may be
required to submit evidence of unsuccessful attempts to obtain required documents
or alternative evidence.
The BIA has ruled that the general standards developed in case law for
suspension of deportation, the pre-IIRAIRA form of relief analogous to cancellation
of removal, should be applied to the newer form of relief.48 Under suspension of
deportation, the applicant had the burden of establishing his or her eligibility, and
documents and other evidence presented during the proceedings would be considered
in deciding his or her eligibility for relief.49
Changes Made by the REAL ID Act. The REAL ID Act as originally
introduced did not establish standards for removal relief other than asylum and
withholding of removal. However, section 101(d) of the enacted version of the
REAL ID Act amends § 240(c) of the INA (8 U.S.C. § 1229a(c)) concerning the
burden of proof in removal proceedings by establishing standards for the burden of
proof and credibility determinations for removal relief in general that are similar to
those specifically for asylum and withholding of removal. An alien will have the
burden of proof to establish eligibility for relief and that he or she merits a favorable
exercise of discretion for any discretionary relief. The alien must comply with
requirements to submit supporting documents or other information for relief as
provided by law, regulation, or instructions on the relief application form. The
immigration judge will determine whether or not the testimony of an applicant or
witness is credible and persuasive, and refers to specific facts demonstrating
satisfaction of the burden of proof. The immigration judge shall weigh credible
testimony along with other evidence of record. The standards established by REAL
ID Act § 101(a) and (c) for asylum and withholding of removal provide that the
adjudicator may weigh credible testimony with other evidence of record since
credible testimony alone may satisfy the burden of proof. This difference appears to
result from the special circumstances for asylum and withholding of removal, where
persecution and flight from persecution may make corroboration difficult or
impossible (so that credible testimony may be the only evidence obtainable), and
where the removal may endanger the safety of the alien. Other forms of relief may
46 8 C.F.R. §§ 240.64, 1240.64 (2004).
47 8 C.F.R. §§ 244.9, 1244.9 (2004).
48 See IMMIGRATION LAW AND PROCEDURE § 64.04[3][b][v].
49 See id. § 74.07[7][a].
not entail such special consideration. If the immigration judge 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 and cannot reasonably obtain it without leaving the United
States. The inability to obtain corroborating evidence does not relieve the applicant
from sustaining the burden of proof.
Considering the totality of the circumstances and all relevant factors, the
immigration judge 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
they were made, whether they were under oath, and considering the circumstances
under which the statements were made), internal consistency of a statement,
consistency of statements with other evidence of record (including the Department
of State reports on country conditions), and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy or falsehood goes
to the heart of an applicant’s claim. There is no presumption of credibility; however,
if no adverse credibility determination is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility on appeal.
Subsection 101(h)(2) provides that the standards established in § 101(d) of the
REAL ID Act took effect on the date of enactment (May 11, 2005) and apply to
applications for removal relief made on or after such date. Accordingly, the
standards do not apply by statute to applications filed before the date of enactment.
Standards of Judicial Review for Certain Determinations
Background. Section 242(b)(4) of the INA limits the scope and standard for
judicial review of removal orders.50 A court of appeals can only base its decision on
the administrative record on which the removal order was based; administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary; a decision that an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to law; and the Attorney
General’s discretionary judgment whether to grant asylum is to be conclusive unless
manifestly contrary to the law and an abuse of discretion. Case law also reflects
these standards. The standard of judicial review for discretionary denial of an asylum
claim is whether there has been an abuse of discretion. The standard of review for
a denial of asylum based on a finding of fact (no persecution or well-founded fear of
persecution) is whether the decision is supported by substantial evidence.51 The
standard of review for a denial of withholding of removal is whether the decision is
supported by substantial evidence, since the relief is not discretionary.52 For
withholding of removal, a finding of fact that the applicant’s testimony is not credible
is also subject to the substantial evidence standard.
50 8 U.S.C. § 1252(b)(4) (2004).
51 IMMIGRATION LAW & PROCEDURE § 34.02[12][g].
52 Id. § 33.06[8].
Changes Made by the REAL ID Act. REAL ID Act § 101(e) amends
§ 242(b)(4) of the INA53 by establishing standards of judicial review for reversing
certain evidentiary determinations of the adjudicator for asylum, withholding of
removal, or other relief from removal. It limits judicial review by barring a court
from reversing the decision of the adjudicator about the availability of corroborating
evidence, unless it finds that a reasonable adjudicator is compelled to conclude that
such evidence is unavailable.
It is unclear whether this amendment significantly changes existing law, since
the previous statutory language already stated that administrative findings of fact —
which apparently would include a conclusion about the availability of evidence —
may not be reversed unless a reasonable adjudicator would be compelled to find
otherwise. It appears that this provision, together with REAL ID Act provisions
establishing standards for determining credibility and use of corroborating evidence,
is intended to ensure uniformity of standards for judicial review of findings of fact
on availability of corroboration, although even the Ninth Circuit had held that
administrative findings of fact would not be reversed unless a reasonable adjudicator
would be compelled to find otherwise under § 242(b)(4) of the INA.54
REAL ID Act, § 101(h)(3) provides that the judicial review standards
established in § 101(e) took effect on the date of enactment (May 11, 2005) and apply
to all cases in which the final administrative removal order was issued before, on, or
after such date.
Judicial Review of Denials of Discretionary Relief
Background. Section 242(a)(2)(B) of the INA limits judicial review of55
denials of discretionary relief. Notwithstanding any other laws, it bars any court
from jurisdiction to review any judgment on relief under various inadmissibility
waivers, cancellation of removal, voluntary departure and adjustment of status, or any
other discretionary decision or action of the Attorney General regarding title II of the
INA (immigration laws for the admission and removal of aliens in the United States),
other than the granting of asylum.
Changes Made by the REAL ID Act. REAL ID Act § 101(f)(1) amends
§ 242(a)(2)(B)(ii)of the INA56 by adding a reference to the Secretary of Homeland
Security, which helps to clarify the text and make it consistent with the aims of the
Reorganization Plan for the Department of Homeland Security.
Subsection 101(f)(2) amends § 242(a)(2)(B) of the INA57 by clarifying that
jurisdiction is barred regardless of whether the discretionary judgment, decision, or
53 8 U.S.C. § 1252(b)(4) (2004).
54 E.g., Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003).
55 8 U.S.C. § 1252(a)(2) (2004).
56 8 U.S.C. § 1252(a)(2)(B)(ii) (2004).
57 8 U.S.C. § 1252(a)(2)(B) (2004).
action is made in removals proceedings. This language appears to be intended to
supersede certain precedential federal district court decisions which have ruled that,
considering that the title of § 242 is “judicial review of orders of removal” and that
the context of § 242 as a whole concerns removal orders or actions, the bar on
judicial review of discretionary decisions or actions of the Attorney General only
applies to such decisions or actions made in the context of removal proceedings.58
Although an affirmative asylum application may be made outside the context of a
removal proceeding, such denials are not reviewable until they may be raised again
in the context of a removal proceeding. In any case, the statute specifically exempts
the granting of asylum relief from the jurisdictional bar, but § 101 of the REAL ID
Act is intended to prevent terrorists from obtaining asylum.
REAL ID Act § 101(h)(4) provides that the judicial review standards established
in REAL ID Act § 101(f) took effect on the date of enactment (May 11, 2005) and
apply to all cases pending before any court on or after such date.
Removal of Caps on Adjustment of Status for Asylees
Background. Prior to the enactment of the REAL ID Act, section 209 of the
INA provided that the Attorney General could adjust the status of aliens granted
asylum to lawful permanent residence if they satisfied certain conditions, subject to
a cap of 10,000 persons per fiscal year (aside from certain groups of asylees who are
or have been exempt from the cap or subject to limits set in other legislation).
Section 207(a)(5) of the INA limited the number of refugees and asylees admitted
pursuant to a determination of persecution for resistance to coercive population
control methods to not more than a total of 1,000 for any fiscal year.
Changes Made by the REAL ID Act. Subsection 101(g)(1) of the REAL
ID Act eliminates the cap for adjustment of status for asylees.59 It also replaces
references to the “Immigration and Naturalization Service” with references to the
“Department of Homeland Security” and replaces references to the “Attorney
General” with references to the “Secretary of Homeland Security or the Attorney
General.” Subsection 101(g)(2) of the REAL ID Act eliminates the cap for refugees
and asylees resisting coercive population control. These provisions were not in the
REAL ID Act as introduced. REAL ID Act § 101(h)(5) provides that subsection
58 See, e.g., Mart v. Beebe, 94 F. Supp. 2d 1120, 1123-4 (D. Or. 2000). On the other hand,
other cases such as CDI Information Services, Inc. v. Reno, 278 F.3d 616, 618-20 (6th Cir.
2002), have held that the plain language of the statute bars judicial review of all
discretionary decisions or actions of the Attorney General under title II of the INA
regardless of whether they were made in the context of a removal proceeding and that the
title of a statute or statutory section generally cannot be used to constrict the plain language
of the statute.
59 By the end of FY2003, there were nearly 160,000 cases pending for asylees to adjust to
legal permanent resident status. For background, see CRS Report RL32621, U.S.
Immigration Policy on Asylum Seekers, by Ruth Ellen Wasem.
Repeal of the Study and Report on Terrorists and Asylum
Background. Section 5403 of the Intelligence Reform and Terrorism
Prevention Act of 2004 provided that “the Comptroller General of the United States
shall conduct a study to evaluate the extent to which weaknesses in the United States
asylum system and withholding of removal system have been or could be exploited
by aliens connected to, charged in connection with, or tied to terrorist activity,”
including the extent to which precedential court decisions may have affected the
ability of the federal government to prove that an alien was a terrorist who should be
denied asylum and/or removed.
Changes Made by the REAL ID Act. Subsection 101(i) of the REAL ID
Act repeals the requirement for the study and report, apparently because the other
provisions in REAL ID Act § 101 resolve, or at least are intended to resolve, the
vulnerability of the asylum and withholding of removal systems to terrorists.
II. Waiver of Laws to Facilitate Barriers at Border60
Section 102 of the IIRIRA generally provides for construction and strengthening
of barriers along U.S. land borders to deter illegal crossings in areas of high illegal
entry and specifically provides for 14 miles of barriers and roads along the border
near San Diego, beginning at the Pacific Ocean and extending eastward. IIRIRA §
National Environmental Policy Act of 1969 (NEPA) to the extent the Attorney
General determines is necessary to ensure expeditious construction of barriers and
roads. Despite the waiver of specific laws, construction of the San Diego area
barriers has been delayed due to a dispute involving other laws.63 California’s
Coastal Commission has prevented completion of the San Diego barriers on the
grounds that plans to fill a canyon in order to complete it are inconsistent with the
California Coastal Management Program, a state program approved pursuant to the
federal Coastal Zone Management Act (CZMA).64 The Bureau of Customs and
Border Protection (CBP) within the Department of Homeland Security believed that
the requirements of § 102(c) of the IIRIRA and the CZMA could not be reconciled.th
Consequently, legislation was proposed and considered in the 108 Congress that
would have waived either a broader range of specific environmental, conservation,
and cultural laws or all laws. Also, reportedly the CBP has complied with a NEPA
requirement despite the waiver available to it.65
60 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
61 16 U.S.C. §§ 1531 et seq. (2004).
62 42 U.S.C. §§ 4321 et seq. (2004).
63 See CRS Report RS22026, Border Security: Fences Along the U.S. International Border,
by Blas Nuñez-Neto and Stephen R. Viña.
64 16 U.S.C. §§ 1451-1464 (2004).
65 See California Coastal Commission, W8a Staff Report and Recommendation on
Consistency Determination, CD-063-03, October 2003, at 14.
The REAL ID Act provides additional waiver authority over laws that might
impede the expeditious construction of barriers and roads along the border and also
provides for limited judicial review of a waiver decision by the Secretary of
Homeland Security.
Background. Section 102(c) of the IIRIRA provided for a waiver of the ESA
and NEPA to the extent the Attorney General determined necessary to ensure
expeditious construction of barriers and roads.
Changes Made by the REAL ID Act. Section 102 of the REAL ID Act
amends the relevant IIRIRA provision to authorize (but not require, as in earlier
versions) the Secretary of Homeland Security to waive all legal requirements as he
determines necessary, in his sole discretion, to ensure the expeditious construction
of barriers and roads under IIRIRA § 102. The term “legal requirements” refers to
any local, state or federal statute, regulation, or administrative order.66 Any waiver
decision by the Secretary is effective upon publication in the Federal Register,
thereby ensuring public notice of the action. Additionally, § 102 of the REAL ID Act
provides for federal judicial review of a cause of action or claim alleging that a
waiver decision or action taken by the Secretary of Homeland Security violates the
U.S. Constitution. A claim may be brought in a federal district court not later than
60 days after the date of the challenged action or decision of the Secretary. Appellate
review may only be sought by a petition for a writ of certiorari to the U.S. Supreme
Court. Congress intends to prevent a flurry of lawsuits challenging waiver decisions
from hindering construction of the barrier and defeating the purpose of the waiver,67
while still complying with constitutional requirements.68 Waivers of similar breadth
do not appear to be common in federal law.69 The judicial review and remedies
provisions appear to bar state courts and also agencies or entities such as the
California Coastal Commission, from exercising jurisdiction over waiver decisions
and their consequences. This may also raise constitutional issues with regard to
Congress’ power to restrict state court jurisdiction directly.70
As discussed above, preexisting statutes and the Reorganization Plan for the
Department of Homeland Security have not been generally amended to clarify
references to executive authority throughout the INA. Accordingly, the reference in
preexisting law to the Attorney General with respect to the waiver of laws to
66 H.Rept. 109-72, at 171 (2005).
67 H.Rept. 109-72, at 172 (2005). This provision appears to address concerns raised during
debate in the House of Representatives that providing for a waiver of all laws would result
in a spate of lawsuits challenging the provision that would further delay construction. 151
Cong. Rec. H8899 (daily edition Oct. 8, 2004) (statement of Rep. Farr).
68 The waiver authority may not include a waiver of constitutional violations. For further
discussion of the scope of the waiver and other legal issues regarding § 102, see CRS
Congressional Distribution Memorandum, Sec. 102 of H.R. 418, Waiver of Laws Necessary
for Improvement of Barriers at Borders, Stephen R. Viña and Todd Tatelman (Feb. 9,
69 Id.
70 Id.
facilitate barriers at border is replaced by a reference to the Secretary of Homeland
Security.
III. Judicial Review of Orders of Removal71
Background. In the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)72 and the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA)73 Congress restricted the availability of judicial review of removal
orders. Consequently, section 242(a)(2) of the INA restricts judicial review of
decisions relating to expedited removal of arriving aliens, certain denials of
discretionary relief, and removal orders for aliens removable for certain criminal
offenses. In cases resulting from the 1996 restrictions on judicial review, the
Supreme Court held that there is a strong presumption in favor of judicial review of
administrative actions; therefore, in the absence of a clear statement of congressional
intent to repeal habeas corpus jurisdiction over removal-related matters, such review
was still available after the 1996 changes.74 Furthermore, the Court also found that
eliminating any judicial review, including habeas review, without any substitute for
review of questions of law, including constitutional issues, would raise serious
constitutional questions.75 Therefore, it chose a statutory construction (habeas review
was not eliminated) which would not raise serious constitutional questions.
Changes Made by the REAL ID Act. Section 106(a)(1) of the REAL ID
Act, as enacted, restricts habeas review and certain other non-direct judicial review
for certain removal matters under § 242(a)(2) of the INA, and clarifies that such
restrictions (and other judicial review restrictions under the INA) do not preclude
federal appellate court consideration of constitutional claims or other legal issues
raised in accordance with review procedures under § 242 of the INA. The list of
matters for which judicial review is limited is expanded to include claims under the
Torture Convention; federal appellate review in accordance with procedures under
71 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
72 110 Stat. 1214 (1996).
73 110 Stat. 3009-546 (1996).
74 INS v. St. Cyr, 533 U.S. 289 (2001); Calcano-Martinez v. INS, 533 U.S. 348 (2001).
75 According to the Court, the Suspension Clause, Article I, § 9, cl. 2, of the Federal
Constitution, requires some judicial intervention in removal/deportation cases and at least
protects the writ of habeas corpus as it existed in 1789. In light of ambiguities in the scope
of the writ of habeas corpus at common law and Supreme Court decisions suggesting that
judicial intervention can only be restricted to the extent consistent with the Constitution, the
Court found that a serious Suspension Clause issue would arise if it were to accept the INS
position that the 1996 acts eliminated habeas review without any substitute. To preclude
review of a pure question of law by any court would give rise to substantial constitutional
questions. The Court observed that traditionally the courts distinguished between ruling on
eligibility for relief (a question of law) and ruling on the favorable exercise of discretion (a
factual issue). Although a court could not rule on the validity of the actual granting of
discretionary relief, which is not a matter of right, it could rule on the legality of an
erroneous failure to exercise discretion at all.
§ 242 of the INA is to be the sole and exclusive avenue for judicial review of claims
under the Torture Convention, except for the review procedure specified for
expedited removal orders for arriving aliens under § 242(e) of the INA. Section 106
clarifies that in all immigration provisions restricting judicial review, “judicial
review”and “jurisdiction to review” include habeas and other non-direct review and
that federal appellate review in accordance with procedures under § 242 of the INA
is the only avenue available for review of a removal order issued under any provision
of the INA, except for the review procedure specified for expedited removal orders
for arriving aliens under § 242(e) of the INA.
REAL ID Act § 106(a)(2) amends INA § 242(b)(9), concerning consolidation
of issues for judicial review, to clarify that, except as otherwise provided in § 242 of
the INA, no court has jurisdiction for habeas review or other non-direct judicial
review of a removal order or questions of law or fact arising from such an order.
Subsection 242(g) of the INA concerning exclusive jurisdiction is also amended to
clarify that no habeas review or other non-direct judicial review is available for any
claim arising from a decision or action by the Attorney General regarding the
initiation and adjudication of removal proceedings or the execution of removal orders
against any alien.
The effective date of these amendments was the date of enactment of the
legislation (May 11, 2005) and the amendments made to the INA apply to cases in
which the final administrative order of removal, deportation or exclusion was issued
before, on, or after the date of enactment. Subsection 106(c) of the REAL ID Act
provides for the transfer of pending habeas cases from district courts to federal
appellate courts in which they could have been properly filed under § 242(b)(2) of
the INA or the transitional rules of the IIRIRA. Subsection 106(d) of the REAL ID
Act further provides that IIRIRA transition-rule cases filed under former § 106(a) of
the INA, concerning judicial review of deportation and exclusion cases and repealed
by the IIRIRA, shall be treated as if they had been filed under § 242 of the INA and
that such petitions are the sole avenue for judicial review of deportation or exclusion
orders, notwithstanding any other provisions of law, including habeas review or other
non-direct judicial review.
While eliminating habeas and other non-direct judicial review, REAL ID Act
§ 106 provides that questions of law, including constitutional issues, still have a
forum for review. This appears intended to resolve the constitutional concerns raised
previously by the Supreme Court.
IV. Inadmissibility and Deportability Due to
Terrorist and Terrorist-Related Activities76
Engaging in terror-related activity has strict consequences relative to an alien’s
ability to lawfully enter or remain in the United States.77 The INA provides that
76 Discussion of this topic was prepared by Michael John Garcia, Legislative Attorney.
77 For further background, see CRS Report RL32564, Immigration: Terrorist Grounds for
(continued...)
aliens at any time engaged in specified terror-related activities, or indirectly
supporting them in specified ways, cannot legally enter the United States. Also,
aliens at any time engaged in terrorist activities are deportable if in the U.S., but the
terrorism grounds for deportation do not now extend to certain indirect support, such
as representation of or membership in a terrorist organization. The REAL ID Act,
inter alia, (1) broadens the INA’s definitions of “terrorist organization” and “engage
in terrorist activity”; (2) expands the grounds for inadmissibility based on support of
terror-related activity; and (3) makes the terror-related grounds for deportability
identical to those for inadmissibility.
Definition of “Engage in Terrorist Activity”
Under the INA, to “engage in terrorist activity” is a separate concept from
terrorist activity itself. Whereas “terrorist activity” includes direct acts of violence78
— for instance, hijacking a plane or threatening persons with bodily harm in order
to compel third-party action — actions that constitute being “engage[d] in terrorist
activity” include both these types of acts and other, specified acts that facilitate
terrorist activity, such as preparing, funding, or providing material support for
terrorist activities. Aliens who engage in terrorist activity are inadmissible and
deportable. 79
Again, and as elaborated upon below, the term “engage in terrorist activity,”
while including certain actions in direct support of terrorist acts or organizations, is
not an essential element of all terrorism-based grounds for inadmissibility (as
opposed to deportation, prior to the enactment of the REAL ID Act). Distinct from
support activities that amount to “engaging in terrorist activities” are actions that
support terrorism more indirectly through group membership or advocacy, some of
which render an alien inadmissible but, until recently, not deportable.
Background. Prior to the enactment of the REAL ID Act, in order to “engage
in terrorist activity” for purposes of the INA, an alien must have either as an
individual or as part of an organization:
!committed or incited to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist activity;
!prepared or planned a terrorist activity;
!gathered information on potential targets for a terrorist activity;
!solicited funds or other things of value for a (1) terrorist activity, (2)
a designated terrorist organization, or (3) a non-designated terrorist
organization, unless the solicitor could demonstrate that he did not
77 (...continued)
Exclusion of Aliens, by Michael John Garcia.
78 INA § 212(a)(3)(B)(iii); 8 U.S.C. § 1182(a)(3)(B)(iii) (2004) (defining “terrorist
activity”).
79 INA §§ 212(a)(3)(B)(i)(I), 237(a)(4)(B); 8 U.S.C. §§ 1182(a)(3)(B)(i)(I), 1227(a)(4)(B)
(2004).
know, and should not reasonably have known, that the solicitation
would further the non-designated organization’s terrorist activity;
!solicited another individual to (1) engage in terrorist activity, (2)
join a designated terrorist organization, or (3) join a non-designated
terrorist organization, unless the solicitor could demonstrate that he
did not know, and should not reasonably have known, that the
solicitation would further the non-designated organization’s terrorist
activity; or
!committed an act that the alien knew, or reasonably should have
known, provided material support — including a safe house,
transportation, communications, funds, transfer of funds or other
material financial benefit, false documentation or identification,
weapons (including chemical, biological, or radiological weapons),
explosives, or training — to (1) the commission of a terrorist
activity, (2) an individual or organization that the alien knew or
should reasonably have known committed or planned to commit a
terrorist activity, (3) a designated terrorist organization, or (4) a non-
designated terrorist organization, unless the support provider could
demonstrate that he did not know, and should not reasonably have
known, that the support would further the non-designated
organization’s terrorist activity.80
With respect to acts related to a “terrorist organization,” acts through or on
behalf of an organization formally designated by the government as terrorist are
covered regardless of an individual’s knowledge of the organization’s terrorist
connections. However, at least prior to enactment of the REAL ID Act, if an alien
had acted as a solicitor or provided material support for an organization that had not
been formally designated as a terrorist organization by the United States, but which
had nevertheless committed, incited, planned, prepared, or gathered information for
a terrorist activity, the alien could be deemed not to have engaged in terrorist activity
himself if he could demonstrate that he did not and should not have reasonably
known that his solicitation or material support would further the organization’s
terrorist activities.81
The material support clause within the INA’s definition of “engage in terrorist
activity” could be waived in application to a specific alien if the Secretary of State,
after consultation with the Attorney General, or the Attorney General, after
consultation with the Secretary of State, concluded in his sole unreviewable
discretion that this clause should not apply.82
Changes Made by the REAL ID Act. Section 103(b) of the REAL ID Act
replaces the definition of “engage in terrorist activity” found in INA
80 INA § 212(a)(3)(B)(iv); 8 U.S.C. § 1182(a)(3)(B)(iv) (2004).
81 INA § 212(a)(3)(B)(iv)(IV)-(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)-(VI) (2004). If an
alien provides material support for, or solicits funding or participation in, a terrorist activity
or a group designated as a terrorist organization by the United States, he is deemed to have
engaged in terrorist activity.
82 INA § 212(a)(3)(B)(iv)(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2004).
§ 212(a)(3)(B)(iv) with a new definition. For the most part, this definition is
identical to the previous version. However, a few significant changes are also made.
More Stringent Provisions Relating to Material Support, Solicitation
of Funds or Participation in Nondesignated Terrorist . The REAL ID Act
makes it more difficult for an alien who has provided material support or acted as a
solicitor for either a person engaged in terrorist activity or a non-designated terrorist
organization to avoid being found to have engaged in terrorist activity himself.
Previously, an alien could avoid being found to have engaged in terrorist activity if
he could demonstrate that he did not and should not have reasonably known that his
solicitation or material support to an individual or non-designated terrorist
organization would further terrorist activities.83 Pursuant to the amendments made
by REAL ID Act § 103(b), an alien must demonstrate by clear and convincing
evidence (a higher standard) that he did not and should not have reasonably known
that his solicitation or material support would further a terrorist activity or
organization in order to be found not to have engaged in terrorist activity himself.84
The REAL ID Act permits the material support clause of the definition of “engage
in terrorist activity” to be waived in application to a specific alien if the Secretary of
State or Secretary of Homeland Security, after consultation with the other and the
Attorney General, concludes in his sole unreviewable discretion that this clause
should not apply.85
Material Support to Members of Designated Terrorist
Organizations. The REAL ID Act expands the definition of “engage in terrorist
activity” to include providing material support to a member of a designated terrorist
organization. Under prior law, a person who provided material support to a member
of a terrorist organization, but not to the organization directly, might not be
considered to have engaged in terrorist activity himself unless he knew or should
have known that his support was going to a person that had committed or planned to
commit a terrorist activity.
Effective Date of Changes to the Definition of “Engage in Terrorist
Activity”. Pursuant to § 103(c) of the REAL ID Act, the changes to the INA’s
definition of “engage in terrorist activity” became effective on the date of the REAL
ID Act’s enactment (May 11, 2005), and apply to removal proceedings instituted
before or after the REAL ID Act’s enactment, as well as to acts and conditions
constituting a ground for inadmissibility occurring or existing before or after the
REAL ID Act’s enactment.
83 INA § 212(a)(3)(B)(iv)(IV)-(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)-(VI) (2004).
84 Under the REAL ID Act, if an alien solicits funding or participation or material support
for either a terrorist activity or a group designated as a terrorist organization by the United
States, he is deemed to have engaged in terrorist activity. See REAL ID Act § 103(b). This
standard is the same as that found in prior law.
85 REAL ID Act § 104.
Definition of “Terrorist Organization”
The INA defines “terrorist organization” to include two general categories of
groups. The first category are those groups that are designated as terrorist
organizations by the U.S., thereby providing the public with notice of these
organizations’ involvement in terrorism. The second category includes other groups
that carry out specified terror-related activities, but have not been designated as
terrorist groups.86 For simplicity, this report refers to groups falling within this
second category as nondesignated terrorist organizations. Certain forms of assistance
to a “terrorist organization”are grounds for inadmissibility and deportability because
they amount to “engaging in a terrorist activity.” Furthermore, certain memberships
in or associations with a “terrorist organization” are grounds for inadmissibility even
though until recently such membership or association, vel non, did not make an alien
deportable.87 Accordingly, amending the definition of “terrorist organization” might
have a considerable impact on the reach of other terrorism-related provisions of the
INA.
Background. Prior to the enactment of the REAL ID Act, INA §
!any group designated by the Secretary of State as a terrorist88
organization pursuant to INA § 219;
!upon publication in the Federal Register, any group designated as a
terrorist organization by the Secretary of State in consultation with
or upon the request of the Attorney General, after finding that the
organization committed, incited, planned, prepared, gathered
information, or provided material support for terrorist activities; or
!a group of two or more individuals, whether organized or not, that
committed, incited, planned, prepared, or gathered information for89
terrorist activities.
Changes Made by the REAL ID Act. Section 103(c) of the REAL ID Act
amends the definition of “terrorist organization” found in INA § 212(a)(3)(B)(vi).
The amendments, discussed below, are significant and, in combination with the
REAL ID Act’s expansion of the types of associations with a terrorist organization
86 The USA PATRIOT Act amended INA § 212 to expand the definition of “terrorist
organization” to potentially include terrorist organizations not designated by the Secretary
of State pursuant to INA § 219. A group that is engaged in terrorist activities might not be
designated as a terrorist organization because, inter alia, the group’s activities escape the
notice of U.S. officials responsible for designated organizations as terrorist; the group has
shifting alliances; or designating the group as a terrorist organization would jeopardize
ongoing U.S. criminal or military operations.
87 See INA §§ 212(a)(3)(B)(i)(IV)-(V), 212(a)(3)(F); 8 U.S.C. §§ 1182 (a)(3)(B)(i)(IV)-(V),
88 For further discussion of this provision, see CRS Report RL32120; The ‘FTO List’ and
Congress: Sanctioning Designated Foreign Terrorist Organizations, by Audrey Kurth
Cronin.
89 INA § 212(a)(3)(B)(vi); 8 U.S.C. § 1182 (a)(3)(B)(vi) (2004).
that can lead to an alien’s inadmissibility/deportation, may greatly amplify the reach
of the terrorism provisions of the INA generally. Among other contexts, the changes
could especially impact aliens associated with groups that are part of a web of fund-
raising that is found to support a terrorist activity in some measure.
Retention of Attorney General’s Role in the Designation of Terrorist
Organizations. Most of the authority to administer immigration law that formerly
was held by the Attorney General has been transferred to the Secretary of Homeland
Security, though some authorities have been retained. Section 103(c) of the REAL
ID Act provides both the Secretary of Homeland Security and the Attorney General
with an express role in the designation of groups as terrorist organizations that are not
otherwise designated as such by the Secretary of State pursuant to INA § 219. The
REAL ID Act amends the INA’s definition of “terrorist organization” to include any
group designated as such by the Secretary of State, in consultation with or upon the
request of the Attorney General or the Secretary of Homeland Security, after finding
that the organization “engages in terrorist activity,” as defined under INA §
Expanding the Activities Qualifying a Nondesignated Group as a
Terrorist Organization. The REAL ID Act’s amendments to the INA’s definition
of “terrorist organization” could significantly increase the number of groups that,
despite not being designated as such by the Secretary of State, constitute terrorist
organizations.
First, under prior law, a group not otherwise designated by the Secretary of State
could only be deemed a terrorist organization if the group committed, incited,
planned, prepared, or gathered information for terrorist activity.90 Under the REAL
ID Act, a group not otherwise designated as a terrorist organization could also be
considered such if it solicits funds or membership for a terrorist activity or terrorist
organization or otherwise provides material support for a terrorist activity or
organization. The reach of this extension may not be altogether clear: it appears
uncertain as to whether or how a group could escape coverage by showing that it
could not reasonably have known that an organization for which it solicited or
provided material support was itself involved in conducting terrorist acts or
supporting a “terrorist organization” (as redefined), and so on down the chain.
Second, REAL ID Act § 103(c) further amends “terrorist organization” to
include any non-designated group that has a subgroup that “engages in terrorist
activity,” as expanded by the REAL ID Act in this context to include either (1) direct
participation in or support of a terrorist activity or organization, or (2) indirect
support through solicitation, recruitment, etc. The upshot of the inclusion of
subgroups may be to further lower the threshold for how substantial, apparent, and
immediate a group’s support must be for a terrorist activity or organization for the
group to be considered “terrorist” and for its members to potentially fall within the
terrorism provisions of the INA. For example, if organization A has a subgroup A1
that raises funds for organization B (among other groups), and organization B
distributes funds to organization C (among other groups), which has a subgroup C1
90 See INA § 212(a)(3)(B)(vi)(III); 8 U.S.C. § 1182 (a)(3)(B)(vi)(III) (2004).
that at some point provided support to a terrorist activity or organization,
organization A apparently would qualify as a terrorist organization (and its members
would fall under the grounds of inadmissibility/deportability discussed below) absent
the group’s ability to somehow extricate itself by showing it could not have
reasonably drawn the connection between its subgroup’s fund raising and subgroup
C1.
Pursuant to § 104 of the REAL ID Act, the Secretary of State or the Secretary
of Homeland Security, in consultation with the other and the Attorney General, may
waive the INA provision defining certain non-designated groups as “terrorist
organizations” with respect to a particular group when the provision’s applicability
is based solely on the group having a subgroup that has engaged in terrorist activity.
Effective Date of Changes to the Definition of “Terrorist
Organization”. Pursuant to § 103(c) of the REAL ID Act, the changes to the INA’s
definition of “terrorist organization” made by the REAL ID Act were effective on the
date of enactment (May 11, 2005), and apply to removal proceedings instituted
before or after the REAL ID Act’s enactment, as well as to acts and conditions
constituting a ground for inadmissibility occurring or existing before or after the
REAL ID Act’s enactment.
Terror-Related Grounds for Inadmissibility of Aliens
The INA categorizes certain classes of aliens as inadmissible, making them
“ineligible to receive visas and ineligible to be admitted to the United States.”91
Aliens who “engage in terrorist activity,” as defined by INA § 212(a)(3)(B)(iv), are
inadmissible. In addition, several other terror-related activities are grounds for
inadmissibility.
Background. Prior to the enactment of the REAL ID Act, INA §
212(a)(3)(B)(i)92 provided that an alien was inadmissible on terror-related grounds
if the alien:
!had engaged in terrorist activity;
!was known or reasonably believed by a consular officer or the
Attorney General to be engaged in or likely to engage in terrorist
activity upon entry into the United States;
!had, under circumstances indicating an intention to cause death or
serious bodily harm, incited terrorist activity;
!was a representative of (1) a foreign terrorist organization, as
designated by the Secretary of State, or (2) a political, social or other
similar group whose public endorsement of acts of terrorist activity
the Secretary of State had determined undermined United States
efforts to reduce or eliminate terrorist activities;
91 INA § 212(a); 8 U.S.C. § 1182(a) (2004).
92 8 U.S.C. § 1182(a)(3)(B)(i) (2004).
!was a member of a foreign terrorist organization as designated by the
Secretary of State under INA § 219, or an organization which the
alien knew or should have known was a terrorist organization;
!was an officer, official, representative, or spokesman of the Palestine
Liberation Organization (PLO);
!had used his position of prominence within any country to endorse
or espouse terrorist activity, or to persuade others to support terrorist
activity or a terrorist organization, in a way that the Secretary of
State had determined undermined United States efforts to reduce or
eliminate terrorist activities; or
!was the spouse or child of an alien who was inadmissible under this
section, if the activity causing the alien to be found inadmissible
occurred within the previous five years, unless the spouse or child
(1) did not and should not have reasonably known about the terrorist
activity or (2) in the reasonable belief of the consular officer or
Attorney General, had renounced the activity causing the alien to be
found inadmissible under this section.93
In addition, INA § 212(a)(3)(F) designates an alien as inadmissible if the
Secretary of State, after consultation with the Attorney General, or the Attorney
General, after consultation with the Secretary of State, determines that the alien has
been associated with a terrorist organization and intends while in the United States
to engage solely, principally, or incidentally in activities that could endanger the
welfare, safety, or security of the United States.
Changes Made by the REAL ID Act. Section 103(a) of the REAL ID Act
reorganizes and generally expands the terror-related grounds for inadmissibility.
Given that REAL ID Act § 103(b)-(c) broadens the INA’s definitions of “terrorist
organization” and “engage in terrorist activity” — two phrases frequently used in the
INA provisions establishing the terror-related grounds for inadmissibility — the
REAL ID Act expands the terror-related grounds for inadmissibility more broadly
than might first appear. The interplay between the amended definition of “terrorist
organization,” discussed above, and the expansion of covered support and
associational activities, discussed below, may be particularly significant in
broadening the grounds for inadmissibility.
The following paragraphs discuss the alterations that the REAL ID Act makes
to the terror-related grounds for inadmissibility.
Effects of Expanded Definition of “Engage in Terrorist Activity” on
Terror-Related Grounds for Inadmissibility. As in preexisting law, the REAL
ID Act provides that any alien who has engaged in a terrorist activity is94
inadmissible. As previously mentioned, § 103(b) of the REAL ID Act expands the
applicable definition of the term “engage in terrorist activity.” Thus, under the
REAL ID Act, an alien who solicited on behalf of or provided material support for
93 The limited exception to inadmissibility for the spouse and child of an alien who is
inadmissible on terror-related grounds is found in INA § 212(a)(3)(B)(ii).
94 H.R. 418, § 103(a).
a non-designated terrorist organization is inadmissible unless he demonstrated by
clear and convincing evidence that he did not and should not have reasonably known
that he was soliciting on behalf of or providing material support for a group that met
the definition of “terrorist organization” found in INA § 212(a)(3)(B)(vi)(III).
Retention of Attorney General’s Role in Deeming an Alien
Inadmissible for Terror-Related Activity. Though recent law has transferred
most immigration enforcement authority to the Department of Homeland Security,
the REAL ID Act allows a consular officer, the Secretary of Homeland Security, or
the Attorney General to declare an alien inadmissible if the alien is known to be
engaged in terrorist activity or is likely to engage in such activity upon entry into the
United States.95
Incitement of Terrorist Activity. The REAL ID Act does not alter the
preexisting ground for inadmissibility on account of the incitement of terrorist
activity.
Representation of a Terrorist Organization or Political Group
Espousing Terrorist Activity. Under prior law, a representative of a foreign
terrorist organization designated as such by the Secretary of State was inadmissible.
The REAL ID Act expands this ground for inadmissibility to deny admission to a
representative of any group that constitutes a “terrorist organization,” as defined
under INA § 212(a)(3)(B)(vi). As previously discussed, the REAL ID Act expands
the breadth of the term “terrorist organization” for purposes of the INA.
The REAL ID Act also makes inadmissible any representative of a political,96
social or other similar group that endorses or espouses terrorist activity. Previously,
such representatives were only inadmissible if (1) the organization publicly endorsed
terrorist activity and (2) the Secretary of State determined that such endorsement
undermined U.S. efforts to reduce or eliminate terrorist activities.97
Pursuant to § 104 of the REAL ID Act, the Secretary of State or the Secretary
of Homeland Security, in consultation with the other and the Attorney General, may
waive this provision with respect to a particular alien.
Membership in a Terrorist Organization. The REAL ID Act substantially
increases the grounds for inadmissibility on account of membership in a terrorist
organization. Previously, membership in a foreign terrorist organization designated
by the Secretary of State under INA § 219, or membership in an organization that the
alien knew or should have known was a terrorist organization, made an alien98
inadmissible. The REAL ID Act facilitates the removal of a member of a
non-designated terrorist organization by shifting the burden from the Government to
show that the alien knew or should have known the nature of the organization to the
95 INA § 212(a)(3)(B)(i)(II); 8 U.S.C. § 1182(a)(3)(B)(i)(II).
96 REAL ID Act § 103(a).
97 INA § 212(a)(3)(B)(i)(IV); 8 U.S.C. § 1182(a)(3)(B)(i)(IV) (2004).
98 INA § 212(a)(3)(B)(i)(V); 8 U.S.C. § 1182(a)(3)(B)(i)(V) (2004).
alien to demonstrate by clear and convincing evidence that he did not know, and
should not reasonably have known, that the organization was a terrorist organization.
Again, the expansion of definition of “terrorist organization” could significantly
amplify the potential impact of these changes.
Officers, Spokesmen, and Representatives of the Palestine
Liberation Organization. In both prior law and the REAL ID Act, an alien who
is an officer, official, representative, or spokesman of the PLO is inadmissible.
Expanding Inadmissibility Grounds for Espousal of Terrorist
Activity. Prior to enactment of the REAL ID Act, aliens were inadmissible for the
espousal of terrorist activity only if they (1) used positions of prominence (within any
country) to endorse or espouse terrorist activity, or to persuade others to support
terrorist activity or a terrorist organization, and (2) did so in a way that undermined
U.S. efforts to reduce or eliminate terrorist activities, based on a determination by the
Secretary of State. The REAL ID Act makes inadmissible any alien who espouses
or endorses terrorist activity, or persuades others to support terrorist activity or a
terrorist organization, regardless of whether the alien has a position of prominence
and his espousal undermines U.S. efforts to reduce terrorism in the opinion of the
Secretary of State.
It is important to note that this ground for inadmissibility does not include a
mens rea requirement. It appears that an alien who persuades others to support a
terrorist organization is inadmissible even if the alien had no knowledge of the
organization’s terrorist activities. The possibility of this occurring may not be
improbable, given the REAL ID Act’s expansion of the definition of “terrorist
organization” to include any group that engages, or has a subgroup that engages in
terrorist activity, including soliciting funds or otherwise providing material support
for a “terrorist organization” (which itself may be one solely because it has, for
example, a subgroup that has solicited or provided funds to another “terrorist
organiz ation”).
Pursuant to § 104 of the REAL ID Act, the Secretary of State or the Secretary
of Homeland Security, in consultation with the other and the Attorney General, may
waive this provision with respect to a particular alien.
Receiving Military-Type Training from or on Behalf of a Terrorist
Organization. The REAL ID Act makes inadmissible any alien who has received
military-type training99 from or on behalf of any organization that, at the time the
training was received, was a terrorist organization, a term defined under INA §
99 18 U.S.C. § 2339D(c)(1) defines “military-type training” as including “training in means
or methods that can cause death or serious bodily injury, destroy or damage property, or
disrupt services to critical infrastructure, or training on the use, storage, production, or
assembly of any explosive, firearm or other weapon, including any weapon of mass
destruction.”
of such training is only a deportable offense.100 It is important to note that this
ground for inadmissibility does not include a mens rea requirement, and does not
specify that the organization must be designated as a terrorist organization by the
United States. Accordingly, it appears that an alien who receives military-type
training from or on behalf of a terrorist organization is inadmissible, regardless of
whether the alien was aware or should have been aware that the organization was
engaged in terrorist activity.
Inadmissibility of a Spouse or Child of an Alien Inadmissible on
Terror-Related Grounds. The REAL ID Act neither alters the inadmissibility of
the spouse or child of an alien who was deemed inadmissible on terror-related
grounds nor eliminates the exception to inadmissibility for an alien’s spouse or child
who (1) did not and should not have reasonably known about the terrorist activity or
(2) in the reasonable belief of the consular officer or Attorney General, has renounced
the terror-related activity causing the alien to be found inadmissible.
Association with a Terrorist Organization. The REAL ID Act does not
amend INA § 212(a)(3)(F), which designates an alien as inadmissible if the Secretary
of State, after consultation with the Attorney General, or the Attorney General, after
consultation with the Secretary of State, determines that the alien has been associated
with a terrorist organization and intends while in the United States to engage solely,
principally, or incidentally in activities that could endanger the welfare, safety, or
security of the United States.
Effective Date of Changes to the Terror-Related Grounds for
Inadmissibility. Pursuant to § 103(c) of the REAL ID Act, changes to the
terror-related grounds for inadmissibility became effective on the date of the REAL
ID Act’s enactment (May 11, 2005), and apply to removal proceedings instituted
before or after the REAL ID Act’s enactment, as well as to acts and conditions
constituting a ground for inadmissibility occurring or existing before or after the
REAL ID Act’s enactment.
Waiver of Certain Grounds for Inadmissibility
Section 104 of the REAL ID Act, as enacted, provides designated officials with
waiver authority over certain terrorism-related immigration provisions. The
Secretary of State or Secretary of Homeland Security, in consultation with the other
and the Attorney General, may waive the applicability of
!INA § 212(a)(3)(B)(i)(IV)(bb), as amended, which makes
representatives of political, social, or other groups that endorse or
espouse terrorist activity inadmissible;
!INA § 212(a)(3)(B(i)(VII), as amended, which makes aliens who
endorse or espouse terrorist activity, or persuade others to endorse
or espouse terrorist activity or support a terrorist organization,
inadmissible;
100 See INA § 237(a)(4)(E); 8 U.S.C. § 1227(a)(4)(E) (2005) (as amended by the Intelligence
Reform and Terrorist Prevention Act of 2004, P.L. 108-458, § 5402).
!INA § 212(a)(B)(iv)(VI), as amended, which defines “terrorist
organization,” on the condition that this provision may only be
waived with respect to a group who would constitute a “terrorist
organization” solely on account of having a subgroup that has
engaged in terrorist activity; and
!INA § 212(a)(3)(B)(iv)(VI), as amended, which defines material
supports constituting engagement in terrorist activity for purposes of
the INA.
The Secretary of State (but not the Secretary of Homeland Security) may not
exercise waiver authority with respect to an alien after removal proceedings against
the alien are instituted.
REAL ID Act § 104 also imposes reporting requirements on the Secretary of
State and Secretary of Homeland Security regarding their exercise of waiver authority
under this section. They are required to provide specified House and Senate
committees101 with an annual report regarding the aliens with respect to whom waiver
authority under REAL ID Act § 104 was exercised. Additionally, the Secretary of
State and/or Secretary of Homeland Security are required to report to specified House
and Senate committees within one week of exercising REAL ID Act § 104 waiver
authority with respect to a group (i.e., determining that a group that has a subgroup
engaged in terrorist activity is not itself a “terrorist organization” for purposes of the
INA).
While § 104 provides the Secretary of State and Secretary of Homeland Security
with authority to waive certain terrorism-related grounds making an alien
inadmissible under INA § 212, no similar waiver authority is provided over the
terrorism-related grounds that make an alien deportable under INA § 237.
Terror-Related Grounds for Deportability of Aliens
Aliens found to have engaged in terror-related activities following admission
into the United States may be deportable. Until recently, the terror-related grounds
for inadmissibility were significantly broader than those for deportability. The REAL
ID Act amended the terror-related grounds for deportability to make them identical
to the terror-related grounds for inadmissibility.
Background. Prior to the enactment of the REAL ID Act, INA § 237(a)(4)(B)
provided that an alien was deportable if he committed any of the actions falling under
the INA’s definition of “engage in terrorist activity.” Pursuant to § 5402 of the
Intelligence Reform and Terrorism Prevention Act of 2004, any alien who received
military-type training from or on behalf of any organization that, at the time the
101 These committees are the House and Senate Committees on the Judiciary, the House
Committee on International Relations, the Senate Committee on Foreign Relations, and the
House Committee on Homeland Security.
training was received, was designated as a terrorist organization by the Secretary of
State, was deportable.102
Changes Made by the REAL ID Act. Section 105(a) of the REAL ID Act
significantly expands the terror-related grounds for deportability, so that any alien
who is described in the inadmissibility provisions of INA §§ 212(a)(3)(B) (relating
to terrorist activity) or 212(a)(3)(F) (relating to association with a terrorist
organization) is also deportable. The following sections discuss the new deportation
grounds added by the REAL ID Act.
Effects of Expanded Definition of “Engage in Terrorist Activity” on
Terror-Related Grounds for Deportability. A person who engages in terrorist
activity is both inadmissible and deportable under both current law and prior to the
enactment of the REAL ID Act. However, as previously mentioned, § 103(b) of the
REAL ID Act also expands the applicable definition of the term “engage in terrorist
activity.” Thus, an alien who provided material support or solicited funds or
participation in a non-designated terrorist organization is now deportable unless he
demonstrates by clear and convincing evidence that he did not and should not have
reasonably known that the organization was a terrorist organization.
Designation as Deportable for Terror-Related Activity by a Consular
Officer, the Attorney General, or the Secretary of Homeland Security.
The REAL ID Act enables a consular officer, the Attorney General, or the Secretary
of Homeland Security to declare an alien inadmissible who is known to be engaged
in terrorist activity or is likely to engage in such activity upon entry into the United
States. Although the REAL ID Act provides that “any alien considered inadmissible103
[on terror-related grounds] ... is deportable,” it is unclear whether this means that
a consular officer, the Attorney General, or the Secretary of Homeland Security could
declare an alien deportable if the alien was known to be engaged in terrorist activity
or was likely to engage in such activity within the United States, or what procedures
apply in such a circumstance.
Incitement of Terrorist Activity. The REAL ID Act makes any alien who
incited terrorist activity, under circumstances indicating an intention to cause death
or serious bodily harm, deportable as well as inadmissible.
Representation of a Terrorist Organization or Political Group
Espousing Terrorist Activity. The REAL ID Act makes deportable as well as
inadmissible any representative of either (1) a terrorist organization or (2) a political,
social or other similar group that endorses or espouses terrorist activity.
Membership in a Terrorist Organization. The REAL ID Act makes it a
deportable offense for an alien to be either (1) a member of a terrorist organization
designated by the Secretary of State, or (2) a member of any group that constitutes
a terrorist organization, unless the alien can demonstrate by clear and convincing
102 Id.
103 REAL ID Act, § 105(a).
evidence, that he did not know, and should not reasonably have known, that the
organization was a terrorist organization.
Officers, Spokesmen, and Representatives of the Palestine
Liberation Organization. Pursuant to the REAL ID Act, an alien who is an
officer, official, representative, or spokesman of the PLO is deportable.
Espousal of Terrorist Activity. An alien who espouses or endorses terrorist
activity, or persuades others to support terrorist activity or a terrorist organization, is
deportable as well as inadmissible pursuant to the REAL ID Act. As discussed
previously, this ground for inadmissibility/deportability does not include a mens rea
requirement, meaning that an alien who persuades others to support a terrorist
organization may be considered deportable even if the alien has no knowledge of the
organization’s terrorist activities.
Receiving Military-Type Training from or on Behalf of a Terrorist
Organization. Section 105(b) of the REAL ID Act repeals the former grounds for
deportability on account of receiving military-type training from or on behalf of a
terrorist organization designated by the Secretary of State. Instead, the provision
added by the REAL ID Act making aliens who receive military-type training from or
on behalf of any terrorist organization (i.e., not simply those designated as such by
the Secretary of State) inadmissible is also grounds for deporting an alien. Given the
REAL ID Act’s amendments to the INA’s definition of “terrorist organization” and
the terror-related grounds for inadmissibility, it appears that an alien who receives
military-type training from or on behalf of a terrorist organization is deportable
regardless of whether the alien was aware that the organization was engaged in
terrorist activity.
Deportability of a Spouse or Child of an Alien Inadmissible on
Terror-Related Grounds. The REAL ID Act makes the spouse or child of an
alien inadmissible on terror-related grounds deportable, if the terror-related activity
causing the alien to be inadmissible occurred within the last five years, unless the
alien’s spouse or child (1) did not and should not have reasonably known about the
terrorist activity or (2) in the reasonable belief of the consular officer or Attorney
General, has renounced the terror-related activity causing the alien to be found
inadmissible.
Association with a Terrorist Organization as Grounds for
Deportability. The REAL ID Act makes an alien deportable on the same grounds
that the alien would be inadmissible pursuant to INA § 212(a)(3)(F). Accordingly,
an alien is deportable if the Secretary of State, after consultation with the Attorney
General, or the Attorney General, after consultation with the Secretary of State,
determines that the alien has been associated with a terrorist organization and intends
while in the United States to engage solely, principally, or incidentally in activities
that could endanger the welfare, safety, or security of the United States.
Effective Date of Changes to the Terror-Related Grounds for
Deportability. Pursuant to § 105(a)(2) of the REAL ID Act, the changes to the
terror-related grounds for deportability were effective on the date of the REAL ID
Act’s enactment (May 11, 2005), and apply to acts and conditions constituting a
ground for removal occurring or existing before or after the REAL ID Act’s
enactment.
Consequences of Terror-Related Activities on Eligibility for
Relief from Removal
An alien found to have engaged in terror-related activities is not only
inadmissible and potentially deportable, but is also ineligible for various forms of
relief from removal. In modifying the terror-related grounds for inadmissibility and
deportability, the REAL ID Act also affects certain aliens’ eligibility for relief from
removal. Specifically, the REAL ID Act expands the scope of aliens who were
ineligible for asylum, withholding of removal, and cancellation of removal.
Asylum. Asylum is a discretionary form of relief from removal available to
aliens in the U.S. who have a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
Aliens who have been admitted into the U.S. or who entered surreptitiously are
generally in the posture of potentially “deportable” aliens, and are removable under
grounds for deportation. Aliens otherwise present in the U.S. — “paroled” aliens and
aliens presently arriving at an airport or other port of entry, for example — are in the
posture of potentially “inadmissible” aliens and removable under the grounds for
inadmissibility.
Aliens engaged in terrorist activity are ineligible for asylum, as are aliens who
fall under most other terrorism provisions. Mere membership in a terrorist
organization is perhaps the most notable exception to this automatic disqualification.
The REAL ID Act preserves this exception for inadmissible aliens, but as explained
below, it appears to deny this exemption to deportable aliens. Other changes in law
also appear to result due to changes in cross-references and section numbering arising
from the REAL ID Act.
Restrictions on Asylum Eligibility for Aliens Deportable on
Terror-Related Grounds Prior to the Enactment of the REAL ID Act. A
deportable alien is ineligible for asylum relief on terror-related grounds if he is
“removable under [INA] § 237(a)(4)(B) (relating to terrorist activity).” Prior to the
enactment of the REAL ID Act, an alien was only removable under § 237(a)(4)(B)
if he committed certain actions defined as “engaging in terrorist activity” under INA
§ 212(a)(3)(B)(iv). As previously mentioned, “engaging in terrorist activity” is only
one of several terror-related grounds under which an alien may be deemed
inadmissible.
The REAL ID Act’s Effects upon Asylum Eligibility Restrictions for
Aliens Deportable on Terror-Related Grounds. INA § 208(b)(2)(A)(v)
makes ineligible for asylum any alien who is (1) inadmissible on specified terrorism
grounds (those terror-related grounds for inadmissibility provided under subclause
(I), (II), (III), (IV), and (VI) of INA § 212 (a)(3)(B)(i)) or (2) deportable under INA
§ 237(a)(4)(B) (relating to terrorist activity). With regard to (2), the REAL ID Act
amends INA § 237(a)(4)(B), so that a deportable alien is not only be deportable for
engaging in terrorist activity, but also for committing terror-related activity that
would make the alien inadmissible under INA § 212 — including those activities that
do not make an alien who is inadmissible on terror-related grounds ineligible for
asylum. Accordingly, the REAL ID Act appears to create a disparity in asylum
eligibility, under which an alien designated as inadmissible on account of certain
terror-related activities might still be eligible for asylum relief, while an alien who
is deportable on the same grounds is ineligible.
Pursuant to amendments made by the REAL ID Act, which do not directly alter
the INA’s asylum eligibility provisions but do make the terror-related grounds for
deportability the same as those for inadmissibility, a deportable alien is ineligible for
asylum on terror-related grounds if:
!the alien has engaged in a terrorist activity;
!a consular officer, the Attorney General, or the Secretary of
Homeland Security knows, or has reasonable ground to believe, that
the alien is engaged in or is likely to engage after entry in any
terrorist activity;
!the alien has, under circumstances indicating an intention to cause
death or serious bodily harm, incited terrorist activity;
!the alien is a representative of a terrorist organization, or a political,
social or other similar group that endorses or espouses terrorist
activity;
!the alien is an officer, official, representative, or spokesman of the
PLO;
!the alien is a member of a group designated as a terrorist
organization by the United States;
!the alien is a member of a group of two or more individuals, whether
organized or not, that engages in, or has a subgroup that engages in
a terrorist activity, unless the alien can demonstrate by clear and
convincing evidence that the alien did not know, and should not
reasonably have known, that the organization was a terrorist
organization;
!the alien endorses or espouses terrorist activity or persuades others
to endorse or espouse terrorist activity or support a terrorist
organization (possibly including an organization that the alien does
not know has engaged in terrorist activities, but nevertheless meets
the INA’s definition of “terrorist organization”);
!the alien has received military-type training from or on behalf of any
organization that, at the time the training was received, was a
terrorist organization (possibly including an organization that the
alien does not know to engage in terrorist activities, but nevertheless
meets the INA’s definition of “terrorist organization”);
!a spouse or child of an alien who is inadmissible on terror-related
grounds, if the activity causing the alien to be found inadmissible
occurred within the last five years, unless the spouse or child (1) did
not and should not have reasonably known about the terrorist
activity or (2) in the reasonable belief of the consular officer or
Attorney General, has renounced the terror-related activity causing
the alien to be found inadmissible; or
!the Secretary of State, after consultation with the Attorney General,
or the Attorney General, after consultation with the Secretary of
State, determines that the alien has been associated with a terrorist
organization and intends while in the United States to engage solely,
principally, or incidentally in activities that could endanger the
welfare, safety, or security of the United States.104
Restrictions on Asylum Eligibility for Aliens Inadmissible on Terror-
Related Grounds Prior to the Enactment of the REAL ID Act. Pursuant to
INA § 208(b)(2)(A)(v), an inadmissible alien is ineligible for asylum only if the alien
“is inadmissible under subclause (I), (II), (III), (IV), or (VI) of [INA]
§ 212(a)(3)(B)(i).” Prior to the enactment of the REAL ID Act, an inadmissible alien
would be denied eligibility on terror-related grounds if:
!he had engaged in a terrorist activity (subclause I);
!a consular officer or the Attorney General knew, or had reasonable
ground to believe, that the alien was engaged in or was likely to
engage after entry in any terrorist activity (subclause II);
!the alien had incited terrorist activity, under circumstances indicating
an intention to cause death or serious bodily harm (subclause III);
!the alien was a representative of a foreign terrorist organization
designated by the Secretary of State under INA § 219 or a political,
social or other similar group whose public endorsement of acts of
terrorist activity the Secretary of State had determined undermined
United States efforts to reduce or eliminate terrorist activities, unless
the Attorney General determined, in the Attorney General’s
discretion, that there were not reasonable grounds for regarding the
alien as a danger to the security of the United States (subclause
IV);105 or
!the alien had used the his position of prominence within any country
to endorse or espouse terrorist activity, or to persuade others to
support terrorist activity or a terrorist organization, in a way that the
Secretary of State had determined undermined United States efforts
to reduce or eliminate terrorist activities (subclause VI).106
Changes to Asylum Eligibility for Inadmissible Aliens Made by the
REAL ID Act. INA § 208(b)(2)(A)(v) makes ineligible for asylum any alien who
“is inadmissible under subclause (I), (II), (III), (IV), or (VI) of [INA]
104 Id. (amending the terror-related grounds for deportability to make them identical to the
terror-related grounds for inadmissibility found in INA §§ 212(a)(B)(i), 212(a)(3)(F)), as
amended).
105 This exception exists because of the express language of INA § 208(b)(2)(v), which
provides that an alien is ineligible for asylum if “the alien is inadmissible under subclause
(I), (II), (III), (IV), or (VI) of [INA] § 212(a)(3)(B)(i)...unless, in the case only of an alien
inadmissible under subclause (IV)...the Attorney General determines, in the Attorney
General’s discretion, that there are not reasonable grounds for regarding the alien as a
danger to the security of the United States.”
106 INA § 208(b)(2)(A)(v); 8 U.S.C. § 1158(b)(2)(A)(v) (2004).
§ 212(a)(3)(B)(i)” (terror-related grounds for alien inadmissibility). As discussed
previously, § 103(a) of the REAL ID Act significantly modifies INA
§ 212(a)(3)(B)(i) by amending and rearranging the terror-related grounds for
inadmissibility found in INA § 212(a)(3)(B)(i). For example, whereas prior to the
enactment of the REAL ID Act subclause (VI) of INA § 212(a)(3)(B)(i) made
inadmissible (and also ineligible for asylum, as referenced by INA § 208(b)(2)(A)(v))
any alien who used his position of prominence to endorse or espouse terrorist
activity, pursuant to the amendments made by the REAL ID Act, subclause (VI) now
describes the inadmissibility ground for aliens who are members of non-designated
terrorist organizations (espousal of terrorist activity is still a ground for
inadmissibility, but is now found in subclause (VII) of INA § 212(a)(3)(B)(i)). By
rearranging and amending the INA provisions relating to the terror-related grounds
for inadmissibility, the REAL ID Act affects the scope of the terror-related grounds
for asylum ineligibility that refer to those amended provisions.
Following the enactment of the REAL ID Act, asylum eligibility continues to
be denied only to those aliens who are inadmissible under subclause (I), (II), (III),
(IV), or (VI) of INA § 212(a)(3)(B). Pursuant to the amendments made by the REAL
ID Act to the terror-related grounds for inadmissibility, which amend and rearrange
the terror-related grounds for inadmissibility described in INA § 212(a)(3)(B), an
inadmissible alien may now be denied asylum on terror-related grounds if:
!the alien has engaged in a terrorist activity (subclause I, as
amended);
!a consular officer, the Attorney General, or the Secretary of
Homeland Security knows, or has reasonable ground to believe, that
the alien is engaged in or is likely to engage after entry in any
terrorist activity (subclause II, as amended);
!the alien has, under circumstances indicating an intention to cause
death or serious bodily harm, incited terrorist activity (subclause III,
as amended);
!the alien is a representative of a terrorist organization, or a political,
social or other similar group that endorses or espouses terrorist
activity, unless the Attorney General determines, in the Attorney
General’s discretion, that there are not reasonable grounds for
regarding the alien as a danger to the security of the United States
(subclause IV, as amended); or
!the alien is a member of non-designated terrorist organization,
whether organized or not, which engages in, or has a subgroup
which engages in a terrorist activity, unless the alien can
demonstrate by clear and convincing evidence that the alien did not
know, and should not reasonably have known, that the organization
was a terrorist organization (subclause VI, as amended).107
Because of the manner in which the REAL ID Act amends the INA provision
concerning the terror-related grounds for inadmissibility, an inadmissible alien is no
107 See REAL ID Act § 103 (amending the terror-related grounds for inadmissibility and the
INA’s definition of “terrorist organization” and “engage in terrorist activity”).
longer automatically ineligible for asylum if he has used a position of prominence to
endorse or espouse terrorist activity (although, as discussed previously, a deportable
alien is ineligible for asylum on such grounds).108 On the other hand, membership
in a non-designated terrorist organization automatically denies an alien eligibility for
asylum relief, unless the alien can demonstrate by clear and convincing evidence that
the alien did not know, and should not reasonably have known, that the organization
was a terrorist organization.
Withholding of Removal. Apart from asylum is the separate remedy of
withholding of removal. Like asylum, withholding of removal is premised upon a109
showing of prospective persecution of an alien if removed to a particular country.
In certain circumstances, aliens are ineligible for withholding of removal, including
in cases where the Attorney General decides:
!that having been convicted by a final judgment of a particularly
serious crime, an alien is a danger to the community of the United
States;
!there are serious reasons to believe that the alien committed a
serious nonpolitical crime outside the United States before the alien
arrived in the United States; or
!that there are reasonable grounds to believe that the alien is a danger
to the security of the United States.110
By statute, an alien who is described in INA § 237(a)(4)(B) (i.e., the terror-
related grounds for removal) is reasonably regarded as a danger to the security of the
United States, and is therefore ineligible for withholding of removal.111
Restrictions on Withholding of Removal Eligibility for Aliens
Deportable on Terror-Related Grounds Prior to the Enactment of the
REAL ID Act. An alien lawfully admitted into the United States was ineligible for
withholding of removal on terror-related grounds only if he was deportable under
INA § 237(a)(4)(B), which prior to the enactment of the REAL ID Act made an alien
deportable if he was “engaged in terrorist activity,” as defined under INA
§ 212(a)(3)(B)(iv).
The REAL ID Act’s Effects upon Withholding of Removal Eligibility
for Aliens Deportable on Terror-Related Grounds. The REAL ID Act
amends INA § 237(a)(4)(B) to make an alien deportable on the same terror-related
grounds that make an alien inadmissible. Because the REAL ID Act does not modify
the previous wording of the INA’s withholding of removal eligibility requirements,
an alien who is removable pursuant to any of the expanded, terror-related grounds for
deportability is now also ineligible for withholding of removal.
108 Compare INA § 212(a)(3)(B)(i)(VI) (2004) with REAL ID Act § 103(a) (amending and
rearranging the terror-related grounds for inadmissibility).
109 See INA § 241(b)(3); 8 U.S.C. § 1231(b)(3) (2004). See also 8 C.F.R. § 208.16 (2004).
110 INA § 241(b)(3)(B); 8 U.S.C. § 1231(b)(3)(B) (2004).
111 Id.
Restrictions on Withholding of Removal Eligibility for Aliens
Inadmissible on Terror-Related Grounds Prior to the Enactment of the
REAL ID Act. The INA does not specify that aliens who are inadmissible on terror-
related grounds are automatically ineligible for withholding of removal, though they
might nevertheless fulfill the criteria for relief ineligibility. For example, an alien
who is deportable on the grounds that he has engaged in terrorist activity is ineligible
for withholding of removal on account of the danger he likely poses to the United112
States. An alien who is inadmissible on account of engaging in terrorist activity is
ineligible for withholding of removal for the same reason.
The REAL ID Act’s Effects upon Withholding of Removal Eligibility
for Aliens Inadmissible on Terror-Related Grounds. The REAL ID Act
appears to make aliens who are inadmissible on terror-related grounds ineligible for
withholding of removal. INA § 241(b)(3) provides that an alien who is described by
INA § 237(a)(3)(B) is ineligible for withholding of removal. The REAL ID Act
amends § 237(a)(3)(B) to cover any alien who would be considered inadmissible on
terror-related grounds.113 Accordingly, it appears that pursuant to the REAL ID Act,
an alien who is inadmissible on terror-related grounds is also ineligible for
withholding of removal.
Cancellation of Removal. The INA provides the Attorney General with the
discretionary authority to cancel the removal of certain permanent and nonpermanent
residents. However, aliens who are inadmissible or deportable on account of terror-
related activity are ineligible for such relief.
Restrictions on Cancellation of Removal Eligibility for Aliens
Deportable on Terror-Related Grounds Prior to the Enactment of the
REAL ID Act. An alien is ineligible for cancellation of removal if he is deportable
under INA § 237(a)(4).114 Prior to the enactment of the REAL ID Act, the only
terror-related grounds under which an alien was expressly ineligible for cancellation
of removal was if the alien either engaged in terrorist activity, as defined by INA
§ 212(a)(3)(B)(iv) or received military-type training from or on behalf of a designated
terrorist organization.115
The REAL ID Act’s Effects upon Cancellation of Removal Eligibility
for Aliens Deportable on Terror-Related Grounds. The REAL ID Act
amends INA § 237(a)(4)(B) so that any alien who would be considered inadmissible
on terror-related grounds (as amended by the REAL ID Act) is also deportable,
significantly increasing the terror-related grounds that may disqualify a deportable
alien from having his removal canceled.
112 Id.
113 REAL ID Act § 104(a)(1).
114 INA § 240A(c)(4); 8 U.S.C. § 1229b(c)(4) (2004).
115 See INA § 237(a)(4); 8 U.S.C. § 1227(a)(4) (2004). A deportable alien involved in
terror-related activity might nevertheless be ineligible for cancellation of removal on
security or foreign policy grounds. See INA §§ 237(a)(4)(A), (C); 8 U.S.C. §§
Restrictions on Cancellation of Removal Eligibility for Aliens
Inadmissible on Terror-Related Grounds Prior to the Enactment of the
REAL ID Act. An alien is ineligible for cancellation of removal if he is
inadmissible under INA § 212(a)(3), which contains both security and terror-related
grounds for inadmissibility.
The REAL ID Act’s Effects upon Cancellation of Removal Eligibility
for Aliens Inadmissible on Terror-Related Grounds. As discussed
previously, the REAL ID Act amends INA § 212(a)(3)(B)(i) to broaden the terror-
related grounds for inadmissibility. Accordingly, the category of inadmissible aliens
who are ineligible for cancellation of removal on terror-related grounds is expanded.
V. Improved Security for Drivers’ Licenses and
Personal Identification Cards116
Prior to the passage of the Intelligence Reform and Terrorism Prevention Act
of 2004, standards with respect to drivers’ licenses and personal identification cards117
were determined on a state-by-state basis with no national standards in place.
Even with the passage of the Intelligence Reform and Terrorism Prevention Act of
2004, with the exception of what was specifically provided for by the legislation, a
majority of the standards remained at the discretion of state and local governments.118
The REAL ID Act contains a number of provisions relating to improved security
for drivers’ licenses and personal identification cards, as well as instructions for
states that do not comply with its provisions. The REAL ID Act also repeals certain
overlapping and potentially conflicting provisions of the Intelligence Reform and
Terrorism Prevention Act of 2004.119
116 Discussion of this topic was prepared by Todd B. Tatelman, Legislative Attorney.
117 Congressional action prior to 9/11 on national standards in this direction proved highly
controversial. For example, § 656 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (P.L. 104-208, Division C) provided federal standards for state
drivers’ licenses and birth certificates when used as identification-related documents for
federal purposes. A state had two choices under this provision. It could require that each of
its licenses include the licensee’s Social Security number in machine-readable or
visually-readable form. Or the state could more minimally require that each applicant submit
the applicant’s Social Security number and verify the legitimacy of that number with the
Social Security Administration. However, this section became subject to widespread public
criticism shortly after its enactment, with opponents most frequently alleging that it could
be construed as a step toward a national identification card system. Congress blocked funds
to implement regulations aimed at assisting the states to adopt the Social Security number
requirements, and the underlying requirement itself was subsequently repealed in § 355 of
the Department of Transportation and Related Agencies Appropriations Act 2000 (P.L.
106-69). Prior to 9/11, legislation aimed at discouraging national standards for
identification documents had gained bipartisan support and was thought likely to pass.
118 P.L. 108-458, §§ 7211-7214.
119 As mentioned previously, a bill containing only the provisions of THE REAL ID ACT
(continued...)
Background. The Intelligence Reform and Terrorism Prevention Act of 2004
delegated authority to the Secretary of Transportation, in consultation with the
Secretary of Homeland Security, empowering them to issue regulations with respect
to minimum standards for federal acceptance of drivers’ licenses and personal120
identification cards.
Pursuant to the Intelligence Reform and Terrorism Prevention Act, the Secretary
was required to issue regulations within 18 months of enactment that required each
driver’s license or identification card, to be accepted for any official purpose by a
federal agency, to include the individual’s: (1) full legal name; (2) date of birth; (3)
gender; (4) driver’s license or identification card number; (5) digital photograph; (6)
address; and (7) signature.121 In addition, the cards were required to contain physical
security features designed to prevent tampering, counterfeiting or duplication for
fraudulent purposes; as well as a common machine-readable technology with defined122
minimum elements. Moreover, states were required, pursuant to implementing
regulations, to confiscate a driver’s license or personal identification card if any of123
the above security components were compromised.
The statute also required that the implementing regulations address how drivers’
licenses and identification cards were issued by the states. Specifically, the
regulations were required to include minimum standards for the documentation
required by the applicant, the procedures utilized for verifying the documents used,124
and the standards for processing the applications. The regulations were, however,
prohibited from not only infringing upon the “State’s power to set criteria concerning
what categories of individuals are eligible to obtain a driver’s license or personal
119 (...continued)
relating to drivers’ licenses and personal identification cards, has also been introduced. See
Driver’s License Security and Modernization Act, H.R. 368, 109th Cong. (1st Sess. 2005).
120 See P.L. 108-458, § 7212. Whether limiting the standards to federal acceptance - as
opposed to direct federal prescriptions on the states - obviates federalism concerns under
Supreme Court jurisprudence, remains to be seen. The Court has held that in exercising its
power under the Commerce Clause, Congress may not “commandeer” the state regulatory
processes by ordering states to enact or administer a federal regulatory program. See New
York v United States, 505 U.S. 144 (1992). The Court has extended this principle by
holding, in Printz v. United States, that Congress may not circumvent the prohibition on
commandeering a state’s regulatory processes “by conscripting the State’s officers directly.”
Printz v. United States, 521 U.S. 898, 935 (1997). It may be possible to argue that, because
the issuance of drivers’ licenses remains a state regulatory function, the minimum issuance
and verification requirements established in this bill, even if limited to federal agency
acceptance, constitute an effective commandeering by Congress of the state regulatory
process, or a conscription of the state and local officials who issue the licenses.
121 P.L. 108-458, § 7212(b)(2)(D)(i)-(vii).
122 Id. at § 7212(b)(2)(E)-(F).
123 Id. at § 7212(b)(2)(G).
124 Id. at § 7212(b)(2)(A)-(C).
identification card from that State,”125 but also from requiring a state to take an
action that “conflicts with or otherwise interferes with the full enforcement of state
criteria concerning the categories of individuals that were eligible to obtain a driver’s
license or personal identification card.”126 In other words, it appeared that if a state
granted a certain category of individuals (i.e., aliens, legal or illegal) permission to
obtain a license, nothing in the implementing regulations were to infringe on that
state’s decision or its ability to enforce that decision. In addition, the regulations
were also not to require a single uniform design, and were required to include
procedures designed to protect the privacy rights of individual applicants.127
Finally, the law required the use of negotiated rulemaking pursuant to the
Administrative Procedure Act.128 This process was designed to bring together
agency representatives and concerned interest groups to negotiate the text of a
proposed rule. The rulemaking committee was required to include representatives
from: (1) state and local offices that issue drivers’ licenses and/or personal
identification cards; (2) state elected officials; (3) Department of Homeland Security;
and (4) interested parties.129
Changes Made by the REAL ID Act. In general, while the REAL ID Act
does not directly impose federal standards with respect to states’ issuance of drivers’
licenses and personal identification cards, states nevertheless appear to need to adopt
such standards and modify any conflicting laws or regulations in order for such
documents to be recognized by federal agencies for official purposes.
As enacted version of the REAL ID Act contains a definition of the phrase
“official purpose.” For purposes of the act, an “official purpose” is defined as
including, but not limited to, “accessing Federal facilities, boarding federally
regulated commercial aircraft, entering nuclear power plants, and any other purposes
that the Secretary [of Homeland Security] shall determine.” In addition, the REAL
ID Act contains a provision that specifically repeals the recently enacted § 7212 of
the Intelligence Reform and Terrorism Prevention Act of 2004, which contained the
preexisting law with respect to national standards for drivers’ licenses and personal
identification cards.
Minimum Issuance Standards. Section 202(c) of the REAL ID Act
establishes minimum issuance standards for federal recognition requiring that before
a state can issue a driver’s license or photo identification card, a state will have to
verify with the issuing agency, the issuance, validity and completeness of: (1) a photo
identification document or a non-photo document containing both the individual’s
full legal name and date of birth; (2) date of birth; (3) proof of a social security
number (SSN) or verification of the individual’s ineligibility for a SSN; and (4) name
125 Id. at § 7212(b)(3)(B).
126 Id. at § 7212(b)(3)(C).
127 P.L. 108-458, § 7212(b)(3)(D)-(E).
128 See Negotiated Rulemaking Act of 1990, P.L. 101-648, 104 Stat. 4970 (1990) (codified
as amended at 5 U.S.C. §§ 581 et seq.).
129 See P.L. 108-458, § 7212(b)(4)(A)-(B).
and address of the individual’s principal residence. To the extent that information
verification requirements previously existed, they were a function of state law and
varied from state to state. This REAL ID Act provision appears to preempt any state
verification standards and replace them with the new federal standards as established
by this statutory language.
Evidence of Legal Status. Section 202(c)(2)(B) of the REAL ID Act
appears to require states to verify an applicant’s legal status in the United States
before issuing a driver’s license or personal identification card. Previously, the
categories of persons eligible for drivers’ licenses were determined on a state-by-state
basis. As indicated above, the Intelligence Reform and Terrorist Prevention Act of
2004 specifically prevented the Secretary of Transportation from enacting regulations
that would interfere with this authority. This section of the REAL ID Act appears to
preempt any state law requirements and appears to require the states to verify the130
legal status of the applicant.
Temporary Drivers’ Licenses and Identification Cards. Section
202(c)(2)(C) of the REAL ID Act establishes a system of temporary licenses and
identification cards that can be issued by the states to applicants who can present
evidence that they fall into one of six categories.131 Under the REAL ID Act, a state
may only issue a temporary driver’s license or identification card with an expiration
date equal to the period of time of the applicant’s authorized stay in the United
States. If there is an indefinite end to the period of authorized stay, the card’s
expiration date is one year. The temporary card must clearly indicate that it is
temporary and state its expiration date. Renewals of the temporary cards are to be
done only upon presentation of valid documentary evidence that the status had been
extended by the Secretary of Homeland Security. If such provisions existed prior to
the enactment of the REAL ID Act, they existed as a function of state law and are
preempted by the act.
Other Requirements. Pursuant to § 202(d) of the REAL ID Act, states are
required to adopt procedures and practices to: (1) employ technology to capture
digital images of identity source documents; (2) retain paper copies of source
documents for a minimum of seven years or images of source documents presented
for a minimum of ten years; (3) subject each applicant to a mandatory facial image
capture; (4) establish an effective procedure to confirm or verify a renewing
applicant’s information; (5) confirm with the Social Security Administration a SSN
130 For more information relating to current state laws regarding the issuance of drivers’
licenses to aliens see CRS Report RL32127, Summary of State Laws on the Issuance of
Driver’s Licenses to Undocumented Aliens, by Allison M. Smith.
131 According to the REAL ID Act, persons are only be eligible for temporary drivers’
licenses or identification cards if evidence is presented that they: (1) have a valid, unexpired
non-immigrant visa or non-immigrant visa status for entry into the United States; (2) have
a pending or approved application for asylum in the United States; (3) have entered into the
United States in refugee status; (4) have a pending or approved application for temporary
protected status in the United States; (5) have approved deferred action status; or (6) have
a pending application for adjustment of status to that of an alien lawfully admitted for
permanent residence in the United States or conditional permanent resident status in the
United States.
presented by a person using the full Social Security account number;132 (6) refuse
issuance of a driver’s license or identification card to a person holding a driver’s
license issued by another state without confirmation that the person is terminating or
has terminated the driver’s license; (7) ensure the physical security of locations where
cards are produced and the security of document materials and papers from which
drivers’ licenses and identification cards are produced; (8) subject all persons
authorized to manufacture or produce drivers’ licenses and identification cards to
appropriate security clearance requirements; (9) establish fraudulent document
recognition training programs for appropriate employees engaged in the issuance of
drivers’ licenses and identification cards; (10) would limit the length of time a
drivers’ license or personal identification card is valid to eight years.
In addition to these requirements, the REAL ID Act contains language requiring
that states, if they elect to issue a drivers’ license or personal identification card that
does not conform to the requirements of this act, be required to use a unique color
identifier or design to alert officials that the document is not to be accepted for any
official purpose. Moreover, the states are required to clearly state on the face of the
document that it is not to be accepted for federal identification or for any official
purpose. Further, the enacted version of the REAL ID Act includes a provision
requiring the states to maintain a motor vehicle database that, at a minimum, contains
all data fields printed on the drivers’ license or identification card and all motor
vehicle driver histories, including violations, suspensions or “points.” Finally, the
act requires the states to provide electronic access to their databases to all other
states. To the extent that any of these requirements previously existed, they did so
as a function of state law. Thus, it appears that the state laws are preempted in favor
of the new federal standards.
Trafficking in Authentication Features for Use in False Identification
Documents. Section 203 of the REAL ID Act amends 18 U.S.C. § 1028(a)(8),
which makes it a federal crime to either actually, or with the intent to, transport,133
transfer, or otherwise dispose of to another, materials or features used on a
document of the type intended or commonly used for identification purposes. By
replacing the phrase “false identification features” with “false or actual authentication
features,” this provision appears to broaden the scope of the criminal provision,
making it a crime to traffic in identification features regardless of whether the feature
is false. In addition, section 203 requires that the Secretary of Homeland Security
enter into the appropriate aviation-screening database the personal information of
anyone convicted of using a false drivers’ license at an airport.
Additional Provisions. Section 204 of the REAL ID Act authorizes the
Secretary of Homeland Security to make grants to the states, for the purpose of
assisting them in conforming to the new national standards. The section also
132 In the event that a SSN is already registered to or associated with another person to whom
any state has issued a driver’s license or identification card, the state is required to resolve
the discrepancy and take appropriate action.
133 These include, but are not limited to, holograms, watermarks, symbols, codes, images,
or sequences. See 18 U.S.C. § 1028(d)(1) (2004).
contains the necessary language authorizing the appropriation of federal funds for the
grant program.
Section 205 provides the Secretary of Homeland Security with the statutory
authority to promulgate regulations, set standards, and issue grants. The Secretary
is required by the statute to consult with both the Secretary of Transportation as well
as with the states when acting pursuant to this authority. Moreover, the Secretary is
authorized to extend the three-year deadline contained in section 202(a)(1) for any
state on the condition that the state provide an adequate justification for their
non-compliance.
VI. Improving Border Infrastructure
and Technology Integration134
Title III of the REAL ID Act is directed at improving border infrastructure and
technology integration between state and federal agencies.135 It requires DHS to
conduct a study on U.S. border security vulnerabilities, establish a pilot program to
test ground surveillance technologies on the northern and southern borders to
enhance U.S. border security, and implement a plan to improve communications
systems and information-sharing between federal, state, local, and tribal agencies on
matters relating to border security. DHS is also required to submit reports to
Congress regarding its implementation of these requirements.
Vulnerability and Threat Assessment Relating to Border
Infrastructure Weaknesses
Section 301 of the REAL ID Act requires the Under Secretary of Homeland
Security for Border and Transportation Security, in consultation with the Under
Secretary of Homeland Security for Science and Technology and the Under Secretary
of Homeland Security for Information Analysis and Infrastructure Protection, to
study the technology, equipment, and personnel needed by field offices of the Bureau
of Customs and Border Protection to address security vulnerabilities within the
United States, and conduct a follow-up study at least once every five years thereafter.
The Under Secretary of Homeland Security for Border and Transportation Security
is required to submit a report to Congress of findings and conclusions from each
study, along with legislative recommendations for addressing security vulnerabilities.
Section 301(c) authorizes necessary appropriations for fiscal years 2006 through
Establishment of a Ground Surveillance Pilot Program
The U.S. borders with Mexico and Canada are monitored in a variety of ways,
including through the use of border patrol agents, video cameras, ground sensors, and
134 Discussion of this topic was prepared by Michael John Garcia, Legislative Attorney.
135 Title III was added to the REAL ID Act pursuant to an amendment offered by Rep. James
Kolbe.
aircraft.136 Pursuant to the Intelligence Reform and Terrorism Prevention Act of
including sensors, video, and unmanned aerial vehicles — to improve surveillance
along U.S.-Canadian border.137 Section 302 of the REAL ID Act requires the
Department of Homeland Security to establish a pilot program to identify and test
ground surveillance technologies to enhance border security. The program covers
both northern and southern border locations. The REAL ID Act also requires DHS
to submit a report to designated House and Senate committees within a year of
program implementation describing the program and recommending whether it
should terminate, be made permanent, or be enhanced.
Enhancement of Border Communications Integration and
Information Sharing
Section 303 of the REAL ID Act requires the Secretary of Homeland Security,
in consultation with various federal, state, local, and tribal agencies, to develop and
implement a plan to improve interagency communication systems and enhance
information-sharing on matters related to border security on the federal, state, local,
and tribal level. DHS is required to submit a report to designated House and Senate
committees within a year of plan implementation that includes any recommendations
that the Secretary of Homeland Security found appropriate.
136 For additional background on border surveillance, see CRS Report RL32562, Border
Security: The Role of the U.S. Border Patrol, by Blas Nunez-Neto; and CRS Report
RS21698, Homeland Security: Unmanned Aerial Vehicles and Border Surveillance, by
Christopher Bolkcom.
137 P.L. 108-458, §§ 5101-5105.