Maryland Testimony; March 18, 2009
CSDL is a non-partisan 501(c) (3), crime prevention, educational, public charity based in Washington, D.C. Our funding comes from foundations and donors across the country. CSDL prepares and distributes educational materials and research about the national security and public safety benefits of improving the security of driver’s license issuance. CSDL supports comprehensive DMV procedures for authenticating identification in all states.
A driver’s license is the preferred identification document for law enforcement, employment and commercial business. It is only when a patrolman stops a speeding driver, or a traffic accident occurs, that a driver’s license is used to prove lawful eligibility to operate a motor vehicle. More often, a driver’s license is used to prove our identity when we obtain a job, purchase a gun, or board an airplane. Every adult needs a driver’s license or a state issued identification card as a fact of everyday life.
In 2001, eighteen of the nineteen 9/11 hijackers carried some form of government-issued identification, mostly state drivers’ licenses and identification cards, many of which were obtained fraudulently. They used them to board the planes, to avoid presenting foreign passports. The National Commission on Terrorist Attacks Upon the United States (commonly referred to as the “9/11 Commission”) recognized that drivers’ licenses are used more often for verifying a person’s identity than demonstrating a person’s eligibility to safely operate a motor vehicle. It also recognized that foreign and domestic terrorists alike will continue to seek to obtain drivers’ licenses under assumed names in order to disguise their true identities. The 9/11 Report stated that,
“Secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as drivers licenses. Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists[1].”
The REAL ID Act, passed by Congress and signed into law in 2005 as Public Law 109-13, responded to that recommendation. The REAL ID Act sets minimum standards for drivers’ licenses and state issued identification documents that are used for “official purposes,” such as boarding an airplane or entering a nuclear power plant[2]. The purpose of REAL ID is to close critical vulnerabilities and prevent criminals and other nefarious individuals who would seek to live under the cover of false identification from doing so.
Lawful Presence
Lawful presence or lawful status[3] pertains to whether a person is legally allowed to be in the country. Only individuals who can demonstrate and be verified as being lawfully present in the United States can obtain a REAL ID compliant driver’s license or identification card, but not all individuals who are lawfully present in the United States can obtain a REAL ID driver’s license. For example, foreign nationals who enter the United States under the Visa Waiver Program are not eligible for a REAL ID driver’s license[4]. The REAL ID Act limits the type of foreign nationals who have lawful presence in the United States eligible for a REAL ID compliant license to those who are authorized to stay here for an extended period of time. Those visa categories require a much high level of screening in order to obtain a visa.
Unfortunately, drivers’ licenses and other state issued identification cards are accepted by most authorities, commercial businesses and many legal processes as a valid proof of identification. As such driver’s licenses have become a de facto proof of lawful presence. For example, the federal government rules for the I-9 Form allow expired or unexpired drivers’ licenses to be presented to employers as proof of identity and eligibility for employment[5]. By issuing a driver’s license that is valid beyond the period of an individual’s authorized period of stay in the United States, a state may be unknowingly helping an illegal immigrant overstay his or her visa in the United States. As of 2006, it is estimated that there are between 4.5 and 5 million visa overstays in the United States[6].
The 9/11 terrorists were very well aware of this weakness. Hani Hanjour, the pilot of Fight 77 which crashed into the Pentagon, after failing his Virginia driving test on August 2, 2001, obtained a Maryland identification card on September 5, 2001; just six days before the attack[7]. Hanjour’s identification card would have expired just over two years ago despite the fact that his foreign student visa expired more than eight years ago[8].
In December of last year, three illegal immigrants and two permanent legal residents were found guilty of planning to kill soldiers at the Fort Dix Army Base. The three illegal immigrants were unable to obtain identification because they were here illegally, and under New Jersey state law (enacted in 2002), could not obtain an identification card without providing proof of lawful presence. Without identification, these individuals were unable to purchase weapons legally. They were forced to go outside the cell to buy the weapons, exposing the plot to undercover federal law enforcement agents[9].
Unfortunately, terrorists are not the only types of foreign criminals that seek out states that do not check to see if an individual is lawfully present in the United States. Foreign criminals and terrorists alike will continue to seek out those states with weak issuance processes, specifically those states that do not check for lawful presence. In an interview with the New York Times, Former Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement, Julie Myers, said that, “the annual number of deportable immigrant inmates [is] expected to vary from 300,000 to 455,000, or 10 percent of the overall inmate population[10].” Unfortunately, many state and local jails do not coordinate with the Immigration and Customs Enforcement. These individuals are often released into our communities. As those deportable criminal aliens need to move, live and work in the United States, they seek drivers’ licenses from states that do not have a lawful presence requirement. Oregon, under Democratic Governor, Ted Kulongoski, enacted a number of broad reforms that included a lawful presence check. In the Executive Order, Governor Kulongoski stated that,
“Although the magnitude of these activities is not yet fully known, it appears that criminal organizations both inside and outside Oregon are using Oregon's permissive standards in order to assist persons to illegally obtain driver licenses and identification cards from DMV. These services are being advertised in foreign language newspapers in states with more stringent standards. It appears that these organizations transport individuals into Oregon for a fee and provide them with false residency documents solely for the purpose of illegally obtaining an Oregon driver license or identification card. Investigations into these activities are ongoing[11].”
Maryland Motor Vehicle Administrator John Kuo testified before this state legislature that the Maryland Motor Vehicle Administration needs to increase the security of driver licensing and identification processes against mounting crime that he says is coming from the increased out-of-state demand from illegal immigrants seeking Maryland driver licenses. Kuo referred to Maryland as a state a “pass-through” for illegal immigrants attempting to obtain drivers’ licenses and identification cards [12]. Last year, the Maryland Department of Motor Vehicles received 300,000 out-of-country requests for application appointments.
How to Address This Security Vulnerability
Requiring Proof of Lawful Presence
Maryland is one of four states that do not require documentary proof of lawful presence as a pre-condition for obtaining a driver’s license. The others are New Mexico, Hawaii, and Washington. By not requiring proof of lawful presence as a primary requirement to issue a driver’s license or an identification card, Maryland is making itself a magnet state for foreign criminals amongst the millions of undocumented immigrants seeking to exploit this vulnerability. The Department of Homeland Security estimates that there are 11.6 million “unauthorized immigrants” in the United States[13]. Maryland receives over 5,000 “out-of-country” applications for drivers’ licenses and identification cards every week.
The Hawaii state legislature is moving aggressively to pass legislation that would require documentary proof of lawful presence as a pre-condition for applying for a driver’s license[14]. The Washington state legislature is considering similar legislation[15].
If only New Mexico and Maryland remain “open for business,” foreign nationals who have overstayed their visas as well as those who have illegally entered the United States will target Maryland and New Mexico as a safe haven to obtain acceptable identification.
Accepting the Right Documents
When requiring proof of lawful presence for driver’s license applicant, it is important that only appropriate documents be accepted for that purpose. For example, some states accept a Social Security card as proof of lawful presence. However, proof of lawful presence cannot be demonstrated on a Social Security card because it does not indicate the individual’s authorized period of stay or even if that individual is a U.S. citizen[16]. The REAL ID Act regulations require that states only accept specific documents as proof of lawful presence. These include a valid, unexpired U.S. passport, a certified copy of a birth certificate, a Consular Report of Birth Abroad, a valid unexpired Permanent Resident Card, Certificate of Naturalization or a Certificate of Citizenship[17].
Verification
Because of the high quality of document counterfeiting available from street vendors throughout the country, the authenticity of immigration documents and visas need to be verified using secure online services. The REAL ID Act provides explicit guidelines on how to verify an individual’s lawful presence in the United States. The regulation requires that lawful presence be verified through the Systematic Alien Verification for Entitlements (SAVE) system.[18] DMVs enter an alien registration number or I-94 number into SAVE and receive two possible responses within seconds: an applicant’s immigration status, or a request for additional information. If additional information is required, DMVs often issue a temporary license (often limited to a term of one month) and the DMV, the applicant or both send in the additional information required.
Visa Expiration Date and DLs
The term of the driver’s license must be tied to an individual’s authorized period of stay. If a foreign national overstays his or her visa, and has a valid driver’s license that extends beyond that period, the state has in effect facilitated a violation of federal law. Drivers’ licenses and state issued identification cards serve all manner of identification purposes. Maryland’s legislature should not condone driver’s license loopholes which help those who seek to remain in the country illegally and violate the law.
Conclusion
George Santayana once said, “Those who cannot remember the past are condemned to repeat it.” Much of the debate regarding lawful presence has been occupied by a discussion of whether or not Maryland should adopt a two tier driver’s license/identification card system. Adopting a two tier driver’s license system is counterintuitive to the objective of strengthening the driver license and identification card issuance process. The promise of a photo identification document will act as a magnet for criminals, illegal immigrants and dangerous individuals. In 2006, just two years after the driver certificate program began, Tennessee Governor Phil Bredesen was forced to halt the issuance of driver certificates (issued under a similar two tier system like the one Maryland is considering today), because the program’s attraction to criminals posed a significant risk to law abiding Tennessee residents. A little over a year later, the Maryland legislature passed and Governor Bredesen signed a broad number of reforms to the driver license and identification card issuance process that allowed lawfully present individuals to apply for temporary licenses provided that the applicant could provide proof of lawful presence.
The Proof of Lawful Presence Act of 2009, sponsored by Senator Norman Stone (and cosponsored by Senator Nancy Jacobs, Senator Katherine Klausmeier, Senator Bryan W. Simonaire), would require applicants to prove that they are lawfully present in the United States, and would tie the validity of the applicant’s driver’s license to that person’s authorized period of stay. Delegate George’s bill makes common sense reforms to Maryland’s licensing and issuance policies, and should be enacted as soon as possible.
It is of paramount importance to the economic and national security of the United States that a driver’s license accurately conveys the identity of the individual presenting it. These documents are readily accepted as the preferred identity document. Requiring proof of lawful presence is one of the most important checks a State can make before issuing a driver’s license or state identification card.
[1] The 9/11 Report, National Commission on Terrorist Attacks Upon the United States, July 22, 2004, p. 390.
[2] For a definition of “official purposes,” please see 6 CFR 37.03, “Definitions.”
[3] “Lawful status” is the term referred to in Public Law No. 109-13, the REAL ID Act. It is synonymous with “lawful presence.”
[4] The Visa Waiver Program (VWP) enables nationals of 35 countries to travel to the United States for tourism or business [visitor (B) visa purposes] for up to 90 days or less without obtaining a visa. Obviously, foreign nationals who reside in the United States for such a short period do not need a driver’s license.
[5] See 8 CFR 274a.2 Verification of identity and employment authorization
[6] Modes of Entry for the Unauthorized Migrant Population, Pew Hispanic Report, http://pewhispanic.org/files/factsheets/19.pdf, May 22, 2006.
[7] Documents obtained by CSDL illustrate how Hanjour failed a Virginia driver’s licensing exam and then obtained a Maryland identification card a few days later. Copies of those documents can be provided upon request.
[8] Please see Maryland Department of Transportation Motor Vehicle Administration, http://www.marylandmva.com/DriverServ/Apply/id.htm. 9/11 and Terrorist Travel Staff Report on the National Commission on Terrorist Attacks Upon the United States, National Commission on Terrorist Attacks Upon the United States, August 21, 2004, p. 8.
[9]Kephart, Janice, NJ's Legal Presence Requirements Made a Difference in the Fort Dix Plot, Center for Immigration Studies, http://www.cis.org/kephart/fortdix.
[10] “304,000 Inmates Eligible for Deportation, Official Says,” New York Times, March 28, 2008, http://www.nytimes.com/2008/03/28/washington/28immig.html.
[12] Kephart, Janice, What Illegal Immigration Has Got to Do with Driver Licenses: Maryland’s Lament (Updated 1/23/09), Center for Immigration Studies, http://www.cis.org/kephart/MDdriverslicenses.
[13] “Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2008,” Office of Immigration Statistics Department of Homeland Security, February 2009, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2008.pdf.
[14] The Hawaii Transportation Committee recently passed, with the support of the Governor, House Bill NO. 134. HB 134 would require that, “[e]very applicant shall provide at least one document as proof of U.S. citizenship, lawful permanent residency or temporary legal presence…”
[15] Washington Representative Mike Armstrong recently introduced House Bill No. 1026. HB 1026 would require the Washington state Department of Motor Vehicles to require that, “[a] driver's license or identicard applicant must provide the department with documentation that the applicant is a United States citizen or that the applicant's presence in the United States is authorized under federal law.”
[16] “Documents You Need for a Social Security Card,” Social Security Administration, http://www.ssa.gov/ss5doc/.
[17] See 6 CFR 37.11 (g) Evidence of Lawful Status in the United States
[18] See 6 CFR 37.13(b)(1)
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