February 9, 2005
Dear Member of Congress:
I write to you on behalf of the United States Conference of Catholic Bishops' Committee on Migration in opposition to H.R. 418, the REAL ID Act of 2005. As you know, this measure would both raise the standard for obtaining asylum and increase the evidentiary standards by which applicants must prove their claims. H.R. 418 also would repeal recently enacted law that establishes minimum standards for the issuance of driver's licenses and replace that law with onerous new ones that could well make us less safe. And it would require that all existing laws be waived if their waiver would facilitate the completion of the construction of fencing along the U.S.-Mexico border.
In opposing the legislation, we strongly believe that its provisions would, effectively, weaken the protection of asylum, thus preventing victims of persecution from receiving its protections; undermine our national security; and promote unsound public policy.
Making it More Difficult for Victims of Persecution to Obtain Asylum in the United States
The legislation would substantially increase the burden on asylum applicants to prove they qualify for protection in the United States, requiring them to show that one of the five grounds of asylum protection—persecution on the basis of religion, nationality, race, social group, or political opinion—was a central reason behind their persecution. This significant departure from current law would effectively overturn case law affirming that a persecutor may have mixed motives when he acts to persecute someone. Indeed, this provision, seemingly, would require victims to know what is in the mind of their persecutors before they can prove their claims, an extremely difficult, if not impossible, standard to meet.
H.R. 418 also would restrict judicial review of denials of asylum claims that are based on an applicant's failure to provide corroborating evidence and would allow an applicant to be denied relief based only upon the applicant's demeanor or on the lack of consistency in an applicant's story as he or she related it over time.
These provisions ignore the reality that cultural differences could sometimes result in an applicant's demeanor differing from that of the "typical American." They also ignore the fact that some victims of persecution are so traumatized that it may take them time before they are able to relate fully the horrors of the persecution they have faced. And they do not adequately account for the possibility that an applicant may have fled his or her country under emergency circumstances, preventing him or her from obtaining corroborating evidence.
In addition, terrorists are already barred from obtaining asylum by Section 208 (b)(2)(A)(v) of the Immigration and Nationality Act. In our view, the asylum provisions in H.R. 418 would fundamentally weaken asylum protection in the United States without making us any safer. They should be rejected by Congress.
Denying Federal Recognition of Driver's Licenses Based on Legal Status
H.R. 418 would prohibit federal agencies from accepting for any purpose a driver's license which does not meet new minimum document requirements and issuance standards, including a requirement that states verify an applicant's immigration status and deny driver's licenses to aliens who are not lawfully present in the United States.
H.R. 418 would impose Federal requirements on the states that the National Council of State Legislatures has said do not adequately recognize the states' role in balancing public safety, service and other issues. We agree with many of the public safety concerns that numerous state and local law enforcement officials have often cited in defense of permitting states to determine who should be eligible to obtain driver's licenses. These officials believe that denying driver's licenses to all persons who are not lawfully present in the United States would make our roads less safe because the number of unlicensed, untrained, and uninsured drivers would increase dramatically and deny police officers the tools they need in investigating crime or assisting distressed persons in their communities.
H.R. 418's driver's license provisions would not make us any safer. Indeed, one of the great ironies of the legislation is that all of the September 11 hijackers would have been able to get driver's licenses under it. Congress enacted a strong driver's license law less than two months ago. Repealing it and replacing it with the onerous provisions of H.R. 418 would not make us any safer. Indeed, many argue that it would make us less safe. Congress should reject the driver's license provisions of H.R. 418.
Construction of Border Fences
The legislation also would mandate that the Secretary of Homeland Security waive all laws to expedite the construction of barriers and fences on the U.S.-Mexico border.
Our concerns about this provision are numerous, including our concern that this would be a dangerously broad mandate that is almost without precedent. The requirement in the bill that the Secretary of Homeland Security waive all laws expeditious to the construction of barriers along the southern border would be mandatory, not discretionary. Disturbingly, the bill would require waiving all laws, including, for example, laws against murder, laws protecting civil rights, laws protecting the health and safety of workers; laws providing for a minimum wage or prevailing wage; environmental laws; and laws respecting sacred burial grounds.
The legislation also includes bars to judicial review of any decision or action relating to Section 102 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996. In addition, no courts could order any compensatory, declaratory, injunctive, equitable, or other forms of relief arising from the border barrier construction activity. Given the broad mandate to waive all laws necessary to expeditious construction, we find these provisions extremely problematic.
Finally, the waiver authority reaches far beyond the 14 mile fence near San Diego. In reality, the waiver would apply to all "physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States."
In conclusion, it is our view that H.R. 418 would not make our nation safer, as proponents of the measure argue. It would deny legitimate asylum seekers protection in our nation, a traditional haven of refuge for some of the world's oppressed; make our roads less safe; and deny law enforcement tools they need to protect us.
We ask for your opposition to H.R. 418.
Most Reverend Gerald R. Barnes
Bishop of San Bernardino
Chairman, USCCB Committee on Migration