REAL ID . . . REALly For Illegal Aliens
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Be careful what you wish for.

The REAL ID Act, advertised as preventing states from issuing driver's licenses to illegal aliens, is now the law of the land.

REAL ID has all the right enemies. The Treason Lobby has denounced it as preventing "many drivers" from obtaining licenses.  

But this is the truth: the REAL ID Act still contains loopholes big enough to allow truckloads of illegal aliens to get valid temporary state driver's licenses.

This driver's license language first surfaced in the former H.R. 10, but was purged from the final 9/11 "Intelligence Reform" bill. The language reappeared as part of the supplemental appropriations bill for the Iraq war that was signed into law by President Bush on May 10.

The federal requirements for state driver's license and identification cards are scheduled to go into effect three years from now—May 10, 2008.

The final REAL ID bill still contains its most precious much-resisted language: preventing the acceptance of "any foreign document" as a stepping-stone to a state driver's license. It prohibits the use of the Mexican government's infamous "Matricula Consular" card…although unfortunately not for three years. So expect a "get 'em while you can, Amigos" campaign by the Mexican Consulate sometime before the May, 2008 deadline.

Who can still get a driver's license under the REAL ID Act of 2005? [H.R. 1268, 109th Congress (2005), [PDF] (see pages 81-85)]

Here's who:

"(B) EVIDENCE OF LAWFUL STATUS- A State shall require, before issuing a driver's license or identification card to a person, valid documentary evidence that the person—

(i) is a citizen or national of the United States;

(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;

(iii) has conditional permanent resident status in the United States;

(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;

(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;

(vi) has a pending application for asylum in the United States;

(vii) has a pending or approved application for temporary protected status in the United States;

(viii) has approved deferred action status; or

(ix) has 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."

That sure covers a lot of foreign nationals getting state driver's licenses!  But here's the part about temporary licenses that makes for most of the loopholes:

"If a person presents evidence under any of clauses (v) through (ix) of subparagraph (B), the State may only issue a temporary driver's license or temporary identification card to the person."

In fact, of course, the United States citizens in group (i) are the only people listed in the REAL ID Act who absolutely, positively do have permanent status in the United States. All of the other categories cover foreign nationals whose legal status in the United States is subject to revocation or expiration. (Yes, I do realize that United States citizenship can be renounced—but it's rare.) There is nothing "permanent" about "lawful permanent residence" or any of the legal status of aliens listed in the so-called "permanent" groups (ii), (iii) and (iv) either.

Here are the immigration loopholes for the foreign-born groups (ii) through (ix):

  • Any of the aliens in groups (ii) through (ix) could be convicted criminals or illegal aliens currently in removal proceedings, which means they are supposedly on their way OUT of the United States. But as readers of these columns know, Immigration Court hearings and appeals before the Executive Office for Immigration Review (EOIR) can last virtually forever: . . . assuring them plenty of time to enjoy their "temporary" driver's license.

  • Mexican border-crossing card (BCC) holders are technically eligible for temporary driver's licenses under REAL ID group (v)—("non-immigrant visa status"). Their length of stay at any one time is only thirty days. Yet they still are somehow now entitled to a temporary state license for one year at a time, apparently renewable at will as long as they hold the BCC.

  • State motor vehicle agencies may not be able to distinguish whether an alien in group (v) with an "approved" application for asylum is an alien who was only "approved" by an EOIR immigration judge. Technically (perish the thought), such cases may still be on appeal by the federal government.

  • Refugees in group (iv) can enter the United States but decide never to adjust their status to permanent residence. With refugee status alone, they are not free to come and go in and out of the United States as they please. But if they don't have a valid U.S. entry document (other than the special circumstance of being allowed "advance parole" by the federal government), why shouldn't they be limited to a temporary driver's license along with the aliens in groups (v) through (ix)?

  • This business about "pending applications" for immigration status filed by illegal aliens as proof of state driver's license "status" in the United States is a travesty. Under REAL ID, illegal aliens in groups (vi), (vii) and (ix) can get temporary driver's licenses at will. All they have to do is FILE any of the listed applications, no matter how bogus, fraudulent or patently ridiculous.

  • In the immigration benefit fraud department, REAL ID opens the possibility of any alien filing an application for adjustment of status through a fictitious relative, or an application for temporary protected status claiming to be from a country on the current "temporary protected status" (TPS) list. Aliens who file frivolous, bogus immigration applications just to be able to present proof that an application is "pending"—for groups (vi), (vii) and (x)—could care less that the application couldn't possibly be granted.

Here's the point: illegal aliens with a "pending" application for anything are still illegal aliens. But under REAL ID, they can still get a state driver's license.

(Supposedly for a temporary period—but there's nothing more permanent than a temporary driver's license. Who cares if the license is "temporary"—for one-year periods? It can be renewed at will, over and over again.) 

And if that's not enough, the aliens listed in group (viii) ("has approved deferred action status") are really illegal aliens and criminal alien residents who have already been ordered deported, but the federal government has decided to "defer" the "action" of actually carrying out the deportation.

So the illegal aliens in group (viii) will not only have the blessing of the federal government for their non-deportation status, but they'll have the federal government's blessing for their state temporary driver's license as well.

Once aliens are inside the United States, there is nothing stopping any of them from filing whatever applications they want . . . and having a gateway to presenting proof for at least a temporary driver's license under REAL ID.

Who says illegal aliens can't get driver's licenses? REAL ID gives a temporary license for every temporary worker.

If John McCain and Ted Kennedy somehow carry the day with another amnesty disaster, the illegal aliens' temporary state driver's licenses will be a sure thing for anyone who so much as FILES for immigration status . . . courtesy of the federal government.

Bottom line: "temporary workers" (beneficiaries of the future amnesty) will get "temporary" state driver's licenses.

But don't call it "amnesty" . . . and don't dare call it "driver's licenses for illegal aliens."

Juan Mann [send him email] is a lawyer and the proprietor of

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