Border, Entry, and Removal Provisions of the Real ID Act
Posted May 27, 2005
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The Real ID Act, which was signed into law on May 11, 2005 [See our May 12, 2005 NewsFlash, H.R. 1268 Signed into Law, available on MurthyDotCom.], has a number of provisions regarding the U.S. border, inadmissibility, and removal. Here, we explain these provisions for the benefit of MurthyDotCom and MurthyBulletin readers.
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Building Barriers at the Borders
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The Real ID Act permits the Secretary of the Department of Homeland Security (DHS) to waive any existing laws that could stop or delay the building of barriers and roads the Secretary believes are needed to secure our borders. This section permits the Secretary to waive federal, state, or local laws. Notice of these waivers must be provided in the Federal Register and anyone wishing to challenge the Secretary's decision must file that challenge in a U.S. district court within 60 days of the day that the notice is published. This provision vests a significant amount of power in the Secretary of Homeland Security who, hopefully, will use it wisely.
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Border Infrastructure
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The Act directs certain persons in DHS to conduct a study on what may be needed to improve U.S. borders with Mexico and Canada. The DHS is also directed to start two pilot programs within 180 days of the implementation of the Act. The first pilot is a program to utilize or expand utilization of ground surveillance technologies to enhance security at the northern and southern borders. The second is a program to improve interagency communication systems and enhance data sharing on matters affecting border security among federal, state, local, and tribal agencies.
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Inadmissibility Due to Terrorist and Terrorist-Related Activities
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The Real ID Act provides that any foreign national who has engaged in a terrorist activity; is believed by a consular officer, the Attorney General, or the Secretary of Homeland Security to be engaged in or is likely to become engaged in terrorist activity after entering the U.S.; has incited terrorist activity through an intention to cause death or serious bodily harm; is a representative of a terrorist organization or a political, social, or other group that endorses or espouses terrorist activity; is a member of a terrorist organization; endorses or espouses terrorist activity or persuades others to do so; has received military-like training from a group that is a terrorist organization; OR is the spouse or child of any person who has committed one of the above acts within the last five years, is inadmissible to the United States.
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Definitions of "Engaged in Terrorist Activity" and "Terrorist Organization"
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Under this Act, a person has engaged in terrorist activity if the s/he has, as an individual, or as the member of a group, committed or incited a terrorist activity under circumstances that indicate an intention to cause death or serious bodily injury; prepared or planned a terrorist activity; gathered information on potential targets for terrorist activity; solicited funds or other valuable items for terrorist activity or a terrorist organization; solicited any individual to engage in any conduct described in this paragraph, or to join a terrorist organization; or to commit an act that the individual knows or reasonably should know provides material support to a terrorist or terrorist organization or for the commission of any terrorist activity.
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A terrorist organization is defined under the Act as an organization designated under §219 of the Immigration and Nationality Act (INA), an organization otherwise designated as a terrorist organization in the Federal Register, or any group of two or more persons who engage in any of the terrorist activities described above.
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These inadmissibility provisions of the Act are effective as of May 11, 2005 and apply to instances that occurred even before the Act was signed into law. We note that under prior immigration law, there was a section on inadmissibility for terrorists and those believed to be likely to engage in terrorist activities in the United States.
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Waiver for Certain Grounds of Inadmissibility
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The Real ID Act grants the Secretary of State, after consultation with the Attorney General and the Secretary of the Department of Homeland Security, or the Secretary of the Department of Homeland Security, after consultation with the Attorney General and the Secretary of State, the discretionary authority to waive certain terrorist-related grounds of inadmissibility. The Secretary of State, however, is not permitted to grant such a waiver if the foreign national is in removal proceedings. Within at least 90 days of the end of any fiscal year, the Secretaries are required to report to certain members of Congress if they have used this waiver for any individual. They also must notify these members of Congress within one week if they grant waivers to particular groups under this provision.
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Removal of Terrorists
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The Real ID Act makes anyone who is inadmissible due to any terrorist-related grounds removable from the United States. This includes the spouses and children of persons who are inadmissible on terrorist-related grounds for actions taken in the last five years, since these individuals are also inadmissible. These removal provisions of the Act were effective as of May 11, 2005, and apply to instances that occurred even before the Act was signed into law.
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Judicial Review of Orders of Removal
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The Real ID Act limits judicial review of removal and requests for relief under the Convention Against Torture (CAT) cases to the jurisdiction of the U.S. Court of Appeals. The Act also eliminates all forms of habeas corpus review wherever judicial review is eliminated throughout the Immigration and Nationality Act. These provisions apply as of May 11, 2005, and apply to cases in which a final administrative order was issued on, before, or after that date.
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Conclusion
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These provisions of the law allow the Secretary of the Department of Homeland Security to build more physical barriers but also create more legal barriers for persons seeking to enter or remain in the United States legally. They also limit the rights of those detained or facing removal under the immigration system.
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