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FAQ on Discrimination Issues with Real ID
Why Real ID Will Cause New Discrimination Against Many US Citizens and Immigrants
BY ACLU IMMIGRANTS' RIGHTS PROJECT
- 1. Does REAL ID require U.S. citizens to prove that they are citizens?
Yes. Under REAL ID, every person who applies for a driver's license must prove to a DMV clerk that he or she is a U.S. citizen (or legal permanent resident). DMV clerks must decide whether an applicant is a citizen (or qualifying immigrant) before issuing a license. And that type of license issued depends on the applicant's citizenship and immigration status.
- 2. Will REAL ID cause discrimination against citizens?
Yes. REAL ID will inevitably cause discrimination against U.S. citizens who may "look" or "sound" foreign to a DMV bureaucrat. REAL ID requires DMV employees to decide whether someone is a citizen or foreigner before issuing a driver's license. The law demands that DMV bureaucrats distinguish among citizens, permanent resident immigrants and other non-citizens in deciding who is eligible for a license and what type of license may be issued. These requirements mean that DMV employees must make difficult and subtle judgments about complex immigration issues and must decide who is a citizen and who is not.
Based on past experience when similar requirements were imposed on employers, widespread discrimination resulted against citizens who "looked" or "sounded" foreign. As a result, Latino, Asian and other citizens, Puerto Rican U.S. citizens, and citizens who spoke with accents or were not fluent in English all suffered discrimination. We believe that experience will be repeated and that REAL ID will cause more severe discrimination than these past examples.
- 3. Which citizens are at risk of being discriminated against?
If DMV employees are required to verify who is a U.S. citizen, the DMV will be suspicious of anyone who "looks" or "sounds" foreign. Anyone who appears foreign in the opinion of a DMV bureaucrat is at risk of being denied a license or being subjected to greater scrutiny and suspicion.
Citizens of color, persons with accents, those with limited English ability or fluency, and anyone who "seems" foreign to a DMV bureaucrat is likely to be interrogated more, to have his or her documents scrutinized with suspicion, to be treated as suspect, and to be denied a license or targeted for further questioning or investigation. If a person does not satisfy the DMV employee, he or she may be denied a license altogether or be told that he or she is eligible only for a second- (or third-) tier license. Based on experiences in states where similar laws have been enacted, some citizens are likely to have their documents seized, be told they are ineligible for licenses, be accused of fraud, or be demeaned and discriminated against in other ways.
- 4. How does REAL ID work? How will DMV employees decide who is a citizen and who is a qualifying immigrant?
REAL ID requires states to determine an applicant's citizenship and immigration status before issuing a new or renewal license. Different categories of licenses must be issued depending on whether an applicant is a citizen or non-citizen. Only citizens and a few categories of noncitizens (such as legal permanent residents, i.e., those with "green cards") and a few others are entitled to a full-fledged, first-class license.
Other non-citizens who are legally entitled to be in the United States, but who do not fit within the preferred category, are eligible only for a temporary "tier-two" license that is clearly labeled as a temporary license and has a prominent expiration date.
If states decide to issue driver's licenses to non-citizens who do not fit within either category, then the state must issue them a tier-three license. This license must be clearly marked to distinguish it from the tier-one and tier-two, and it must be specifically labeled as "not valid for federal identification" purposes. This tier-three "bulls-eye" license marks anyone who has it as a suspected undocumented immigrant.
- 5. How will DMV employees decide who gets which kind of license?
REAL ID imposes extensive documentation requirements on everyone who applies for a license. Every citizen must prove that he or she is entitled to a tier-one license. This means that DMV officials must review and verify many kinds of documentation and use their judgment and discretion to determine who qualifies as a U.S. citizen or legal permanent resident. Citizens and legal permanent residents who look, sound, or seem "foreign" to a DMV employee will be scrutinized with suspicion, may be required to submit additional proof, and might even have their documents confiscated as fraudulent or invalid.
- 6. Is the fear of discrimination based on actual experiences? Are there any examples of this kind of discrimination in other similar contexts?
Yes. Examples from the past and present show that the threat of discrimination is real and that citizens and legal residents will suffer discrimination if REAL ID is implemented.
- The 1986 federal employer sanctions law requiring employers to verify citizenship and immigration status of new employees has caused widespread discrimination against citizens who employers think look or sound foreign. REAL ID will have the same or an even worse impact because DMV bureaucrats are more likely to deny a license than an employer is to turn away a qualified worker. DMV employees have every incentive to deny licenses rather than to issue them to anyone they deem suspicious.
- The 1986 "employer sanctions" law (enacted by IRCA) requires every employer to verify that every new employee is a U.S. citizen or legal immigrant entitled to work. (I-9 form). The highly-respected, non-partisan GAO concluded that sanctions caused "a widespread pattern of discrimination" on the basis of national origin and "on the basis of the person's foreign appearance or accent...and on the basis of citizenship status."
- Because the ACLU and other organizations voiced concern that the sanctions would cause discrimination, the 1986 law required the GAO to study the impact of sanctions for three years and to determine whether sanctions had led to discrimination against citizens or authorized immigrants. In 1990, the GAO found that employers were discriminating against job applicants with a foreign appearance or accent. The GAO also found that many employers admitted to not hiring persons who presented Puerto Rican birth certificates (who are U.S. citizens) because of the applicants' appearance or accent and the employer's suspicions about the validity of the work eligibility document. The levels of discrimination were found especially high in areas with higher Latino and Asian populations.
- Tennessee's new 2004 driver's license law is similar to REAL ID and has resulted in discrimination against citizens and authorized immigrants.
- Tennessee offers a preview of REAL ID's impact. In 2004, Tennessee passed a law that restricts full-fledged driver's licenses to those who can prove that they are citizens or certain categories of immigrants. Everyone else is eligible only for a driving "certificate" which is not valid for identification purposes under state law.
- The Tennessee Immigrant and Refugee Rights Coalition (TIRRC) has received many complaints of discrimination resulting from the Tennessee law, and the League of United Latin American Citizens (LULAC) has filed a lawsuit challenging some aspects of the law. TIRRC and the LULAC suit report the following incidents:
- U.S. citizens born in Puerto Rico
A U.S. citizen went to the DMV office to renew her license. She presented her Puerto Rican birth certificate and social security card. The DMV clerk accused the applicant of having purchased the documents, implying that she was in the country illegally. When the applicant explained that she was a U.S. citizen by birth, the clerk replied that Puerto Rico was not a part of the United States. The clerk confiscated the birth certificate and social security card, and the applicant received a license only through the intervention of a lawyer.
- Limited English Proficiency
A U.S. citizen by birth with limited English proficiency went to renew his license with the help of a family member. The DMV clerk prohibited the family member from answering a question and ordered the family member away from the counter. When the applicant could not answer a question about the Puerto Rican flag, the DMV clerk told him, "Puerto Ricans know English and you don't." The clerk confiscated the applicant's Puerto Rican birth certificate and social security card.
A refugee entitled to a full-fledged license under Tennessee law showed her documentation stamped refugee and was told that the document was not acceptable and had her license confiscated. The DMV employee told her that she was eligible only for a driving certificate.
- Legal Permanent Residents
A thirty-year legal resident of Tennessee applied for a Tennessee license. She presented her green card, her Nicaraguan passport and her Florida driver's license. The DMV clerk accused her of submitting fraudulent documents, confiscated all of them, and told her that they would be turned over to State Troopers. The applicant was humiliated and tried to report the incident to the police, which refused to write a report. Only after obtaining legal counsel was the applicant able to recover her Nicaraguan passport but her green card and Florida license were not returned. The DMV insisted that the applicant's documents were fraudulent and that its employees did not need any further training on distinguishing between valid and fraudulent documents.
- Because the Tennessee driving "certificate" is not valid for identification under state law, individuals who carry it are more vulnerable to arrest. For example, Tennessee law provides that individuals who commit a misdemeanor may be issued a citation instead of being arrested if they provide identification. Since the certificate does not qualify as valid identification, local law enforcement officials could arrest drivers for misdemeanor offenses instead of issuing them citations.
- 7. Will REAL ID discriminate in other ways against people of color?
The documentation requirements of REAL ID will disproportionately affect the poor and people of color (who are more likely to be poor according to the 2000 census). For example, REAL ID requires that each driver's license include the person's principal address. That means that those who do not own homes and hence move more often will be required to update their address and pay a filing fee more frequently than others. This impact will fall disproportionately on the poor.
If the REAL ID driver's license becomes the de facto requirement for entering a federal building or boarding an airplane, those who cannot afford the license fee will be further isolated and subjected to societal discrimination. Unless the states provide a generous fee waiver for driver's licenses, a significant number of citizens and legal permanent residents of color will be left with no means to board a plane or enter a federal courthouse.
- 8. Will immigrants suffer other forms of discrimination if REAL ID is implemented?
Yes. Any person who receives only a tier-two or tier-three ("bulls-eye") license will automatically be identified as a non-citizen every time she or he shows the license for any purpose. That means merchants, landlords, hotel employees, building guards and countless other private individuals as well as police officers and all other government agents will be immediately tempted (or required) to treat that person differently. There has already been a rise in private discrimination against non-citizens since 9/11 by some landlords, banks and commercial institutions. These policies and practices are likely to increase significantly if driver's licenses label people based on immigration status.
- 9. Does the REAL ID contain any anti-discrimination provisions?
No. There are no provisions in REAL ID that address or prohibit discrimination by DMV employees and there is no administrative remedy for those who experience discrimination when trying to obtain a license.
When Congress enacted employer sanctions, the law included anti-discrimination provisions and created a new federal agency to enforce them. Nonetheless, sanctions caused widespread discrimination. Now, despite the grave threat of massive discrimination as a result of REAL ID, the law does nothing to prevent or punish illegal or discriminatory DMV actions.
- 10. Why is the threat of discrimination not a more central part of the campaign to repeal REAL ID?
The campaign to repeal REAL ID recognizes and condemns the discrimination that REAL ID will cause against citizens and non-citizens alike. We believe this is a key reason why REAL ID should be repealed, and we believe that the civil rights community should educate the public about the discrimination REAL ID will cause if implemented.
We also recognize that the campaign to repeal REAL ID should not be limited to the discrimination issue and that many members of the public who do not share our concern about the discriminatory impact of REAL ID will oppose the law on the grounds of privacy, data-sharing and the fear of a national ID. We support these efforts in the hope that a broad segment of the public will recognize the negative impact of REAL ID on civil rights and civil liberties.