Order Code RL32754
CRS Report for Congress
Received through the CRS Web
Immigration: Analysis of the
Major Provisions of H.R. 418,
the REAL ID Act of 2005
February 2, 2005
Michael John Garcia, Margaret Mikyung Lee, Todd Tatelman
Legislative Attorneys
American Law Division
Congressional Research Service ˜ The Library of Congress

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Immigration: Analysis of the Major Provisions of H.R.
418, the REAL ID Act of 2005
Summary
During the 108th Congress, a number of proposals related to immigration and
identification-document security were introduced, some of which were considered
in the context of implementing recommendations made by the National Commission
on Terrorist Attacks Upon the United States (also known as the 9/11 Commission)
and enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of
2004 (Pub. L. 108-458). At the time that the Intelligence Reform and Terrorism
Prevention Act was adopted, some congressional leaders reportedly agreed to revisit
certain immigration and document-security issues in the 109th Congress that had been
dropped from the final version of the act.
On January 26, 2005, Representative James Sensenbrenner introduced H.R. 418,
the REAL ID Act of 2005. H.R. 418 contains a number of provisions related to
immigration reform and document security that were considered during congressional
deliberations on the Intelligence Reform and Terrorism Prevention Act, but which
were ultimately not included in the act’s final version. H.R. 418 also includes some
provisions that were not considered during final deliberations over the Intelligence
Reform and Terrorism Prevention Act.
This report analyzes the major provisions of H.R. 418, which would, inter alia,
(1) modify the eligibility criteria for asylum and withholding of removal; (2) limit
judicial review of certain immigration decisions, (3) provide additional waiver
authority over laws that might impede the expeditious construction of barriers and
roads along the U.S.-Mexican border near San Diego; (4) expand the scope of
terror-related activity making an alien inadmissible and deportable (removable), as
well as ineligible for certain forms of relief from removal; and (5) require states to
meet certain minimum security standards in order for the drivers’ licenses and
personal identification cards they issue to be accepted for federal purposes (a bill by
Representative Tom Davis, containing only the provisions relating to drivers’
licenses and personal identification cards, has also been introduced as H.R. 368, the
Driver’s License Security and Modernization Act). This report describes relevant
current law relating to immigration and document-security matters, how H.R. 418
would alter current law if enacted, and the degree to which the bill duplicates existing
law. It will be updated as events require.

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Contents
I. Preventing Terrorists from Obtaining Asylum or Withholding of Removal . . 2
Standards for Granting Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Standards for Granting Withholding of Removal . . . . . . . . . . . . . . . . . . . . . 7
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Standards of Judicial Review for Certain Determinations . . . . . . . . . . . . . . . 8
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Judicial Review of Denials of Discretionary Relief . . . . . . . . . . . . . . . . . . . . 9
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Repeal of the Study and Report on Terrorists and Asylum . . . . . . . . . . . . . 10
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. Waiver of Laws to Facilitate Barriers at Border . . . . . . . . . . . . . . . . . . . . . . 10
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
III. Inadmissibility and Deportability Due to Terrorist and
Terrorist-Related Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Definition of “Engage in Terrorist Activity” . . . . . . . . . . . . . . . . . . . . . . . 12
Current Law Defining “Engage in Terrorist Activity” . . . . . . . . . . . . . 12
Changes Proposed by H.R. 418 to the Definition of “Engage in
Terrorist Activity” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Definition of “Terrorist Organization”
. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Current Law Defining “Terrorist Organization” . . . . . . . . . . . . . . . . . 14
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Terror-Related Grounds for Inadmissibility of Aliens . . . . . . . . . . . . . . . . . 16
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Changes to Terror-Related Grounds for Inadmissibility Proposed
by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Terror-Related Grounds for Deportability of Aliens . . . . . . . . . . . . . . . . . . 20
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Consequences of Terror-Related Activities on Eligibility for Relief
from Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Withholding of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
IV. Improved Security for Drivers’ Licenses and Personal
Identification Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Changes Proposed by H.R. 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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Immigration: Analysis of the Major
Provisions of H.R. 418, the
REAL ID Act of 2005
The 109th Congress is considering several issues carried over from the 108th
Congress, including certain issues related to immigration enforcement and
identification-document security. During the 108th Congress, a number of proposals
were made to strengthen identification-document security and make more stringent
requirements for alien admissibility and continuing presence within the United
States.1 Some of these proposals were considered in the context of implementing
recommendations of the National Commission on Terrorist Attacks Upon the United
States (also known as the 9/11 Commission) to improve homeland security, and were
enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004.2
At the time that the Intelligence Reform and Terrorism Prevention Act was enacted,
some congressional leaders reportedly agreed to revisit certain immigration and
document-security issues in the 109th Congress that had been dropped from the final
version of the act.3
On January 26, 2005, Representative James Sensenbrenner introduced H.R. 418,
the REAL ID Act of 2005. H.R. 418 contains a number of provisions related to
immigration reform and document security that were considered during congressional
deliberations on the Intelligence Reform and Terrorism Prevention Act, but which
were ultimately not included in the act’s final version (a bill by Representative Tom
Davis, containing only the provisions of H.R. 418 relating to drivers’ licenses and
personal identification cards, has also been introduced as H.R. 368, the Driver’s
License Security and Modernization Act).4 H.R. 418 also includes some provisions
that were not considered during final deliberations over the Intelligence Reform and
Terrorism Prevention Act.
This report analyzes the major provisions of H.R. 418, the REAL ID Act of
2005. It describes relevant current law relating to immigration and
1 See generally CRS Report RL32169, Immigration Legislation and Issues in the 108th
Congress, Andorra Bruno, Coordinator.
2 Pub. L. No. 108-458, 118 Stat. 3638 (2004). For further background, see CRS Report
RL32616, 9/11 Commission: Legislative Action Concerning U.S. Immigration Law and
Policy in the 108th Congress, by Michael John Garcia and Ruth Ellen Wasem.
3 See Mary Curtius, The Nation; GOP Congressman Renews Push for Immigration Curbs,
L.A. TIMES, Jan. 27, 2005, at A18.
4 Reportedly, H.R. 368 was introduced by Rep. Davis so that the House could consider the
identification document provisions contained in H.R. 418 separately. Patrick O’Connor,
Sensenbrenner and Davis Bills Square Off, THE HILL, Feb. 1, 2005, at 1, 6.

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document-security matters, how H.R. 418 would alter current law if enacted, and the
degree to which the bill duplicates existing law.
I. Preventing Terrorists from Obtaining Asylum or
Withholding of Removal5
The 9/11 Commission Report6 documented instances where terrorists had
exploited relief for aliens in the form of asylum or withholding of removal to enter
and remain in the United States.7 Although the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA)8 and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)9 amended asylum procedures to reduce
fraudulent claims and limited judicial review of removal orders, provisions in H.R.
418 would again amend the Immigration and Nationality Act (INA)10 for the purpose
of further diminishing the prospect of terrorists using the immigration system to their
advantage.
Standards for Granting Asylum
Current Law. Section 208(b) of the INA11 provides that the Attorney General
may grant asylum to an alien who he determines is a refugee as defined in §
101(a)(42)(A) of the INA, which defines a refugee as a person who is persecuted or
who has a well-founded fear of persecution because of race, religion, nationality,
membership in a particular social group, or political opinion.12 An alien who is
physically present or arrives in the United States, regardless of the alien’s
immigration status, may apply for asylum. Although the burden of proof is not
currently explicitly described in the INA, regulations at 8 C.F.R. § 208.13(a) and (b)
place the burden of proof on the asylum applicant, as did previous statutory
provisions.13 Also, case law places the burden of proof on the asylum applicant.14
5 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
6 FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED
STATES, July 2004.
7 E.g. at 72. Ramzi Yousef, one of the terrorists involved in the 1993 World Trade Center
bombing, entered the United States on a political asylum claim.
8 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
9 Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).
10 8 U.S.C. §§ 1101 et seq.
11 8 U.S.C. § 1158(b).
12 8 U.S.C. § 1101(A)(42)(A).
13 See INA § 203(a)(7) between Pub. L. No. 89-236, 79 Stat. 911 (1965) and Pub .L. No.
96-212, 94 Stat. 109 (1980), [current version at 8 U.S.C. § 1153(a)(7)] and Shubash v.
District Director, 450 F.2d 345 (9th Cir. 1971).
14 C. Gordon, S. Mailman, & S. Yale-Loehrer, IMMIGRATION LAW & PROCEDURE, § 34.02
(2004) (hereinafter IMMIGRATION LAW & PROCEDURE).

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The grant of asylum is discretionary and even if an applicant meets the burden of
proof for asylum eligibility, asylum may be denied on discretionary grounds.
There are no explicit standards in the INA on determining the credibility of an
asylum applicant and the necessity for corroborating evidence of applicant testimony.
In the absence of explicit statutory guidelines, standards for determining credibility
and sufficiency of evidence have evolved through the case law of the Board of
Immigration Appeals (BIA) and federal courts. However, these standards are not
necessarily consistent across federal appellate courts, which may yield different
results in otherwise apparently similar cases.15 An asylum adjudicator may base an
adverse credibility finding on factors such as the demeanor of the applicant or
witness, inconsistencies both within a given testimony and between a given
testimony and other testimony and evidence (which may include country conditions,
news accounts, etc.), and a lack of detail or specificity in testimony. The U.S. Court
of Appeals for the Ninth Circuit (Ninth Circuit) has held that an adjudicator must
make explicit the reasons for an adverse credibility finding or the court will accept
the applicant’s testimony as credible.16
Generally, an adverse credibility finding may be based in part but not solely on
an applicant’s failure to provide corroboration. The Ninth Circuit has held that where
there is reason for an adjudicator to question the applicant’s credibility and the
applicant fails to provide easily obtainable corroborating evidence with no
explanation for such failure, an adverse credibility finding will withstand judicial
review.17 With regard to sufficiency of the evidence, the BIA and the federal courts
agree that credible testimony alone may suffice to sustain the applicant’s burden of
proof in some cases, but disagree on when credible testimony alone can meet the
burden and when corroboration is needed. The BIA standard is that where it would
be reasonable to expect corroboration, it must be provided or an explanation for
failure to provide it must be given.18 However, some circuits have criticized the BIA
for failing to articulate what corroboration it expected in certain cases and why. The
Ninth Circuit has adopted a standard that an applicant’s credible testimony alone
always suffices to sustain the burden of proof of eligibility where it is unrefuted,
direct and specific.19 One authority argues that the BIA’s approach is contrary to
international standards under which an asylum applicant should be given the benefit
of the doubt, given the difficulties in obtaining corroborating evidence, although the
15 See id. § 34.02[9] for a discussion of the case law concerning evidentiary standards.
16 “It is well established in this circuit that the BIA may not require independent
corroborative evidence from an asylum applicant who testifies credibly in support of his
application. . . . It is also well settled that we must accept an applicant’s testimony as true
in the absence of an explicit adverse credibility finding.” Kataria v. INS, 232 F.3d 1107,
1113-14 (9th Cir. 2000) (citations omitted). “Even under the substantial evidence standard,
an adverse credibility finding must be based on ‘specific cogent reasons,’ which are
substantial and ‘bear a legitimate nexus to the finding.’” Cordon-Garcia v. INS, 204 F.3d
985, 993 (9th Cir. 2000).
17 Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000).
18 In re S-M-J-, Applicant, 21 I. & N. Dec. 722, 1997 WL 80984 (B.I.A. 1997).
19 Ladha v. I.N.S., 215 F.3d 889 (9th Cir. 2000).

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applicant should try to provide any available corroborating evidence.20 On the other
hand, the U.S. Court of Appeals for the Second Circuit has asserted that the BIA
standards are consistent with international standards because an applicant is supposed
to try to provide corroboration for his or her claim or satisfactorily explain its
absence.21
Currently, an alien who is inadmissible on certain terrorist grounds or who is
removable for engaging or having engaged in terrorist activities is not eligible for
asylum. Not foreclosed from relief is a person who is inadmissible as a member of
a terrorist organization, the spouse or child of a person inadmissible on terrorist
grounds, or a person who is a representative of a terrorist organization where the
Attorney General has determined that there are not reasonable grounds for regarding
the representative as a danger to the security of the United States.22 As discussed
below, however, changes elsewhere in H.R. 418 would much more narrowly restrict
the availability of asylum to those with terrorist ties.
Changes Proposed by H.R. 418. Subsection 101(a) of H.R. 418 would
amend § 208(b)(1) of the INA23 by clarifying that the Secretary of Homeland Security
and the Attorney General both have authority to grant asylum and by strengthening
and codifying the standards for establishing a well-founded fear of persecution.
These changes address the asylum process generally. Proposed changes that could
specifically affect the eligibility for asylum of aliens associated with terrorist
organizations are discussed elsewhere in this memorandum.
Authority of Secretary of Homeland Security. Although the Homeland
Security Act of 200224 and Reorganization Plan under that act25 provided generally
for the transfer of the functions of the defunct Immigration and Naturalization
Service (INS) to the Department of Homeland Security, most provisions of the INA
still refer to the Attorney General and/or Commissioner of the INS. Both the
Secretary of Homeland Security and the Attorney General may now exercise
authority over asylum depending on the context in which asylum issues arise, and §
101(a)(1) and (2) of H.R. 418 would accordingly amend § 208(b)(1) of the INA to
insert references to both the Attorney General and the Secretary of Homeland
20 See IMMIGRATION LAW & PROCEDURE § 34.02[9][c][ii][B], notes 288-292 and
accompanying text.
21 “[I]nternational standards do not conflict with the BIA’s expectation of corroborating
evidence in certain cases. The Handbook of the United Nations High Commissioner for
Refugees notes that applicants should ‘make an effort to support [their] statements by any
available evidence and give a satisfactory explanation for any lack of evidence.’” Diallo v.
INS, 232 F.3d 279, 286 (2nd Cir. 2000).
22 While such a person may have applied for asylum, CRS has not found an instance in
which such a person was granted asylum.
23 8 U.S.C. § 1158(b)(1).
24 Pub. L. No. 107-296, §§ 1102, 1502, 116 Stat. 2135, 2273, 2308, as amended by Pub. L.
No. 108-7, Div. L, § 105(a), 117 Stat. 11, 531 (2003).
25 At [http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf], last
visited Jan. 13, 2005.

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Security. However, this would only address references for that particular subsection
and would not amend the rest of § 208, which would continue to refer only to the
Attorney General. It is not clear whether this omission is intended to limit the
authority of the Secretary with respect to changes in asylum status or procedures for
considering asylum applications.
Burden of Proof and Central Reason. Subsection 101(a)(3) of H.R. 418
would codify the existing regulatory and case law standard that the burden of proof
is on the asylum applicant to establish eligibility as a refugee.
However, the subsection appears to create a new standard requiring that the
applicant must establish that a central reason for persecution was or will be race,
religion, nationality, membership in a particular social group, or political opinion.
Neither § 208 nor § 101(a)(42)(A) of the INA nor the relevant regulation currently
refers to or defines the concept of a “central reason,” which appears to be a
modification of established refugee/asylum laws.
Case law concerning asylum has addressed the concept of “mixed motives” for
the persecution of an alien.26 Where there is more than one motive for persecution,
a person may be granted asylum as long as one of the motives is a statutory ground
of persecution. For example, a person may be economically persecuted, e.g., he may
receive an extortion demand. If the extortion is motivated by both a desire to obtain
money and by a desire to punish the person for a political opinion, or being a member
of a race, religion, nationality, or particular social group, then that person may be
26 IMMIGRATION LAW AND PROCEDURE § 33.04 (2004), comparing, e.g., Fadul v. INS, No.
99-2029, 2000 U.S. App. LEXIS 4952 (7th Cir. Mar. 20, 2000) (death threats by the New
People’s Army motivated by extortion efforts, not political opinion) with Chen v. Ashcroft,
289 F.3d 1113, 1116 (9th Cir. 2002) (vacated on grounds unrelated to the motive analysis,
314 F.3d 995 (9th Cir. 2002)) (“It is not necessary that persecution be solely on account of
one of the forbidden grounds for an asylum applicant to secure asylum. It is enough that a
principal reason for the persecution be on account of a statutory ground”). See also Singh
v. Ashcroft, 2004 U.S. App. LEXIS 18925, at *5 (9th Cir., Sept. 3, 2004); Agbuya v. INS,
241 F.3d 1224, 1228 (9th Cir. 2001); Borja v. INS, 175 F.3d 732, 734-36 (9th Cir. 1999) (en
banc) (“ . . . ‘the plain meaning of the phrase ‘persecution on account of the victim’s
political opinion,’ does not mean persecution solely on account of the victim’s political
opinion. That is, the conclusion that a cause of persecution is economic does not necessarily
imply that there cannot exist other causes of the persecution.’ As the United Nations’
Handbook on Procedures and Criteria for Determining Refugee Status says, ‘What appears
at first sight to be primarily an economic motive for departure may in reality also involve
a political element, and it may be the political opinions of the individual that expose him to
serious consequences, rather than his objections to the economic measures themselves.’
(quoting U.N. Handbook at §§ 62-64). To quote the Board’s decision in this case, ‘An
applicant for asylum need not show conclusively why persecution occurred in the past or
is likely to occur in the future. However, the applicant must produce evidence from which
it is reasonable to believe that the harm was motivated, at least in part, by an actual or
implied protected ground.’” (other cites omitted, emphasis added)); Singh v. Ilchert, 63 F.3d
1501, 1509 (9th Cir. 1995) (“Persecutory conduct may have more than one motive, and so
long as one motive is one of the statutory grounds, the requirements have been satisfied.”).
See also CRS Report RL32621, U.S. Immigration Policy on Asylum Seekers, by Ruth Ellen
Wasem, at 8, 22.

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granted asylum. However, a person may be denied asylum where economic
persecution is motivated solely by the desire to obtain money rather than for the
motives enumerated in the statute. The statutory establishment of a central reason
standard appears to be a modification to the mixed motives standard in some case
precedents.
Corroboration and Credibility. Subsection 101(a)(3) of H.R. 418 would
attempt to bring some clarity and consistency to evidentiary determinations by
codifying standards for sustaining the burden of proof, determining credibility of
applicant testimony, and determining when corroborating evidence may be required.
Under H.R. 418, the testimony of the applicant may suffice to sustain the
applicant’s burden without corroboration, but only if the adjudicator determines that
it is credible, persuasive and refers to specific facts demonstrating refugee status.
The adjudicator may base an applicant or witness credibility determination on, among
other factors, demeanor, candor, responsiveness, inherent plausibility of the account,
consistency between the written and oral statements (regardless of when it was made
and whether it was under oath), internal consistency of a statement, consistency of
statements with the country conditions in the country from which the applicant
claims asylum, and any inaccuracies or falsehoods in such statements. The
adjudicator is entitled to consider credible testimony along with other evidence. If
the adjudicator determines in his/her discretion that the applicant should provide
corroborating evidence for otherwise credible testimony, such corroborating evidence
must be provided unless the applicant does not have it or cannot get it without
leaving the United States. The inability to obtain corroborating evidence does not
relieve the applicant from sustaining the burden of proof.
Given the flexibility afforded the adjudicator, it is not clear that H.R. 418 would
represent either a significant departure from current case law standards for credibility
and corroboration or a clear resolution of inconsistencies among case precedents in
different federal appellate courts and also the BIA. The proposed new §
208(b)(1)(B)(ii) of the INA appears to permit an adjudicator to make an adverse
credibility finding based on the applicant’s failure to provide corroborating evidence
for otherwise credible testimony, unless the applicant does not have it or cannot
obtain it without leaving the United States. This provision appears to be intended
primarily to resolve the difference between the BIA and the Ninth Circuit with regard
to credibility and sufficiency of evidence. On the other hand, the proposed new §
208(b)(1)(B)(iii) of the INA appears to be a codification of, but not a significant
change from, current case law which permits an asylum adjudicator to consider
factors such as demeanor, inconsistencies, and the like in making credibility
determinations, as long as they are not actually speculation or conjecture, rather than
factual observation.
Effective Dates. Subsection 101(c)(1) of H.R. 418 would provide that the
references to the authority of the Secretary of Homeland Security would take effect
as if enacted on March 1, 2003, which was the official date of transfer of immigration
enforcement functions from the INS to the Department of Homeland Security under
the Reorganization Plan. Subsection 101(c)(2) would provide that the asylum
standards established in § 101(a)(3) of H.R. 418 shall take effect on the date of
enactment and apply to asylum applications made on or after such date, therefore, the

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standards would not apply by statute to asylum applications filed before the date of
enactment, although such standards in existing case law would apply.
Standards for Granting Withholding of Removal
Current Law. Subsection 241(b)(3) of the INA places restrictions on removal
to a country where an alien’s life or freedom would be threatened.27 Although there
are similarities between asylum and withholding of removal, there are also significant
differences. Asylum is a discretionary form of relief, for which the standard is a
“well-founded fear of persecution.” Withholding of removal is mandatory relief from
removal for those who can satisfy the higher standard of a “clear probability of
persecution,” also expressed as “more likely than not” that one would be
persecuted.28 A person who has been granted asylum has been admitted into the
United States, although the status is not a right to reside permanently in the United
States. A person who is granted withholding has not been granted legal entry into the
United States and may be removed to his country when there is no longer any threat
to his life or freedom. Withholding of removal is only specific to a particular country
and therefore does not preclude removal to another country under INA §
241(b)(1)(C). An alien granted withholding of removal may not adjust to the status
of a lawful permanent resident and the alien’s family members are not eligible to
come to the United States via the alien’s status in the United States. In contrast,
within numerical limits for asylee adjustments, an alien granted asylum may adjust
status under § 209(b) of the INA29 after being present in the United States for one
year after the grant of asylum if the alien still meets the definition of refugee, is not
firmly resettled in any other country and is otherwise admissible as an immigrant
(with exemptions from certain grounds of inadmissibility). Additionally, under §
208(b)(3) of the INA the spouse and children of an alien granted asylum, if not
otherwise eligible for asylum, may be granted asylum themselves if accompanying
or following to join the alien.30 Aside from the higher standard for burden of proof,
withholding of removal involves similar consideration of credibility and
corroboration factors31 and some of the same issues regarding Ninth Circuit
jurisprudence.32
INA § 241(b)(3)(A) enumerates certain classes of aliens who are ineligible for
withholding of removal, including aliens reasonably believed by the Attorney
27 8 U.S.C. § 1231(b)(3).
28 Compare INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) with INS v. Stevic, 467 U.S. 407
(1984).
29 8 U.S.C. § 1159(b).
30 8 U.S.C. § 1158(b)(3).
31 See IMMIGRATION LAW & PROCEDURE § 34.02[11][c].
32 The Ninth Circuit has held that with regard to withholding of deportation/removal,
administrative adjudicators improperly denied the application for lack of corroboration
where the applicant gave credible testimony. E.g., Mendoza Manimboa v. Ashcroft, 329
F.3d 655 (9th Cir. 2003); Cajura-Flores v. Immigration and Naturalization Service, 784 F.2d
885 (9th Cir. 1985).

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General to be a danger to the security of the United States. The statute further states
that an alien who is removable for engaging in terrorist activities under §
237(a)(4)(B) of the INA33 shall be considered to be an alien with respect to whom
there are reasonable grounds for regarding as a danger to the security of the United
States.
Changes Proposed by H.R. 418. Subsection 101(b) of H.R. 418 would
amend § 241(b)(3) of the INA34 by applying to and codifying for withholding of
removal the same standards for sustaining the applicable burden of proof35 and for
assessing credibility that would be used for asylum adjudications under §
208(b)(1)(B)(ii) and (iii) as added by H.R. 418 § 101(a)(3). The discussion above
concerning specific changes with regard to central reason, credibility determinations,
and corroborating evidence applies to this change as well. Proposed changes that
could specifically affect the eligibility of aliens associated with terrorist organizations
are discussed elsewhere in this memorandum.
H.R. 418 § 101(c)(2) would provide that the withholding of removal standards
established in § 101(b) shall take effect on the date of enactment and apply to
withholding applications made on or after such date; therefore, the standards would
not apply by statute to applications filed before the date of enactment, although such
standards in existing case law would apply.
Standards of Judicial Review for Certain Determinations
Current Law. Section 242(b)(4) of the INA limits the scope and standard for
judicial review of removal orders.36 A court of appeals can only base its decision on
the administrative record on which the removal order was based; administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary; a decision that an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to law; and the Attorney
General’s discretionary judgment whether to grant asylum is to be conclusive unless
manifestly contrary to the law and an abuse of discretion. Case law also reflects
these standards. The standard of judicial review for discretionary denial of an asylum
claim is whether there has been an abuse of discretion. The standard of review for
a denial of asylum based on a finding of fact (no persecution or well-founded fear of
persecution) is whether the decision is supported by substantial evidence.37 The
standard of review for a denial of withholding of removal is whether the decision is
supported by substantial evidence, since the relief is not discretionary.38 For
withholding of removal, a finding of fact that the applicant’s testimony is not credible
is also subject to the substantial evidence standard.
33 8 U.S.C. § 1227(a)(4)(B).
34 8 U.S.C. § 1231(b)(3).
35 Again, the burden of proof is “clear probability of persecution” in withholding cases.
36 8 U.S.C. § 1252(b)(4).
37 IMMIGRATION LAW & PROCEDURE § 34.02[12][g].
38 Id. § 33.06[8].

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Changes Proposed by H.R. 418. H.R. 418 § 101(c) would amend §
242(b)(4) of the INA39 by establishing standards of judicial review for reversing
certain evidentiary determinations of the asylum or withholding of removal
adjudicator. It would limit judicial review by barring a court from reversing the
decision of the adjudicator about the availability of corroborating evidence, unless
it finds that a reasonable adjudicator is compelled to conclude that such evidence is
unavailable.
It is unclear whether this amendment would significantly change existing law,
since the current statutory language already states that administrative findings of fact
— which apparently would include a conclusion about the availability of evidence
— would not be reversed unless a reasonable adjudicator would be compelled to find
otherwise. It appears that this provision, together with H.R. 418 provisions
establishing standards for determining credibility and use of corroborating evidence,
is intended to ensure uniformity of standards for judicial review of findings of fact
on availability of corroboration, although even the Ninth Circuit has held that
administrative findings of fact would not be reversed unless a reasonable adjudicator
would be compelled to find otherwise under § 242(b)(4) of the INA.40
H.R. 418 § 101(c)(3) would provide that the judicial review standards
established in § 101(c) shall take effect on the date of enactment and apply to all
cases in which the final administrative removal order was issued before, on, or after
such date.
Judicial Review of Denials of Discretionary Relief
Current Law. Section 242(a)(2) of the INA limits judicial review of denials
of discretionary relief.41 Notwithstanding any other laws, it bars any court from
jurisdiction to review any judgment granting relief under various inadmissibility
waivers, cancellation of removal, voluntary departure and adjustment of status, or any
other discretionary decision or action of the Attorney General regarding immigration
laws for the admission and removal of aliens in the United States, other than the
granting of asylum.
Changes Proposed by H.R. 418. Subsection 101(d)(1) would amend §
242(a)(2)(B) of the INA42 by clarifying that jurisdiction is barred regardless of
whether the discretionary judgment, decision, or action is made in removal
proceedings. It is unclear what the effect of this provision would be, since the title
of § 242 is “judicial review of orders of removal”; therefore, most matters to be
reviewed would have taken place in the context of a removal proceeding. Although
an affirmative asylum application may be made outside the context of a removal
proceeding, such denials are not reviewable until they may be raised again in the
context of a removal proceeding. In any case, the statute specifically exempts
39 8 U.S.C. § 1252(b)(4).
40 E.g., Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003).
41 8 U.S.C. § 1252(a)(2).
42 8 U.S.C. § 1252(a)(2)(B).

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CRS-10
granting of asylum relief from the jurisdictional bar, whereas § 101 of H.R. 418 is
intended to prevent terrorists from obtaining asylum.
H.R. 418 § 101(d)(2) would amend 242(a)(2)(B)(ii)of the INA43 by adding a
reference to the Secretary of Homeland Security, which would help clarify the text
and make it consistent with the aims of the Reorganization Plan for the Department
of Homeland Security.
H.R. 418 § 101(c)(4) would provide that the judicial review standards
established in H.R. 418 § 101(d) shall take effect on the date of enactment and apply
to all cases pending before any court on or after such date.
Repeal of the Study and Report on Terrorists and Asylum
Current Law. Section 5403 of the Intelligence Reform and Terrorism
Prevention Act of 2004 provides that “the Comptroller General of the United States
shall conduct a study to evaluate the extent to which weaknesses in the United States
asylum system and withholding of removal system have been or could be exploited
by aliens connected to, charged in connection with, or tied to terrorist activity”
including the extent to which precedential court decisions may have affected the
ability of the Federal Government to prove that an alien is a terrorist who should be
denied asylum and/or removed.
Changes Proposed by H.R. 418. Subsection 101(f) of H.R. 418 would
repeal the requirement for the study and report, apparently because the other
provisions in H.R. 418 § 101 would, or at least are intended to, resolve the
vulnerability of the asylum and withholding of removal systems to terrorists.
II. Waiver of Laws to Facilitate Barriers at Border44
Section 102 of the IIRIRA generally provides for construction and strengthening
of barriers along U.S. land borders and specifically provides for 14 miles of barriers
and roads along the border near San Diego, beginning at the Pacific Ocean and
extending eastward. IIRIRA § 102(c) provides for a waiver of the Endangered
Species Act of 1973 (ESA)45 and the National Environmental Policy Act of 1969
(NEPA)46 to the extent the Attorney General determines is necessary to ensure
expeditious construction of barriers and roads. Despite the waiver of specific laws,
construction of the San Diego area barriers has been delayed due to a dispute
involving other laws.47 California’s Coastal Commission has prevented completion
of the San Diego barriers on the grounds that plans to fill a canyon in order to
43 8 U.S.C. § 1252(a)(2)(B)(ii).
44 Discussion of this topic was prepared by Margaret Mikyung Lee, Legislative Attorney.
45 16 U.S.C. §§ 1531 et seq.
46 42 U.S.C. §§ 4321 et seq.
47 See CRS Report RS22026, Border Security: Fences Along the U.S. International Border,
by Blas Nuñez-Neto and Stephen R. Viña.

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CRS-11
complete it are inconsistent with the California Coastal Management Program, a state
program approved pursuant to the federal Coastal Zone Management Act (CZMA).48
The Bureau of Customs and Border Protection (CBP) within the Department of
Homeland Security believed that the requirements of § 102(c) of the IIRIRA and the
CZMA could not be reconciled. Consequently, legislation was proposed and
considered in the 108th Congress that would have waived either a broad range of
specific environmental, conservation, and cultural laws or all laws. Also, reportedly
the CBP has complied with a NEPA requirement despite the waiver available to it.49
H.R. 418 would provide additional waiver authority over laws that might
impede the expeditious construction of barriers and roads along the border. H.R. 418
would require the Secretary of Homeland Security to waive any and all laws that he
determines necessary, in his sole discretion, to ensure the expeditious construction
of barriers and roads under IIRIRA § 102.
Current Law. Section 102(c) of the IIRIRA provided for a waiver of the ESA
and NEPA to the extent the Attorney General determines is necessary to ensure
expeditious construction of barriers and roads.
Changes Proposed by H.R. 418. Section 102 of H.R. 418 would amend
the current provision to require the Secretary of Homeland Security to waive any law
upon determining that a waiver is necessary for the expeditious construction of the
border barriers. Additionally, it would prohibit judicial review of a waiver decision
or action by the Secretary and bar judicially ordered compensation or injunction or
other remedy for damages alleged to result from any such decision or action.50
As discussed above, current statutes and the Reorganization Plan for the
Department of Homeland Security have not amended and clarified references to
executive authority throughout the INA. Accordingly, the reference in current law
to the Attorney General would be replaced by a reference to the Secretary of
Homeland Security.
48 16 U.S.C. §§ 1451-1464.
49 See California Coastal Commission, W8a Staff Report and Recommendation on
Consistency Determination, CD-063-03, October 2003, at 14.
50 This provision appears to address concerns raised during debate in the House of
Representatives that providing for a waiver of all laws would result in a spate of lawsuits
challenging the provision that would further delay construction. 151 Cong. Rec. H8899
(daily edition Oct. 8, 2004) (statement of Rep. Farr).

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CRS-12
III. Inadmissibility and Deportability Due to Terrorist
and Terrorist-Related Activities51
Engaging in terror-related activity has strict consequences relative to an alien’s
ability to lawfully enter or remain in the United States.52 The Immigration and
Nationality Act (INA) provides that aliens at any time engaged in specified
terror-related activities, or indirectly supporting them in specified ways, cannot
legally enter the United States. Also, aliens at any time engaged in terrorist activities
are deportable if in the U.S., but the terrorism grounds for deportation do not now
extend to certain indirect support, such as representation of or membership in a
terrorist organization. If implemented, H.R. 418 would, inter alia, (1) broaden the
INA’s definitions of “terrorist organization” and “engage in terrorist activity”; (2)
expand the grounds for inadmissibility based on support of terror-related activity; and
(3) make the terror-related grounds for deportability identical to those for
inadmissibility.
Definition of “Engage in Terrorist Activity”
Under the INA, to “engage in terrorist activity” is a separate concept from
terrorist activity itself. Whereas “terrorist activity” includes direct acts of violence53
— for instance, hijacking a plane or threatening persons with bodily harm in order
to compel third-party action — actions that constitute being “engage[d] in terrorist
activity” include both these types of acts and other, specified acts that facilitate
terrorist activity, such as preparing, funding, or providing material support for
terrorist activities. Aliens who engage in terrorist activity are inadmissible and
deportable.54
Again, and as elaborated upon below, the term “engage in terrorist activity,”
while including certain actions in direct support of terrorist acts or organizations, is
not an essential element of all terrorism-based grounds for inadmissibility (as
opposed to deportation). Distinct from support activities that amount to “engaging
in terrorist activities” are actions that support terrorism more indirectly through group
membership or advocacy, some of which render an alien inadmissible but, as of now,
not deportable.
Current Law Defining “Engage in Terrorist Activity”. In order to
“engage in terrorist activity” for purposes of the INA, an alien must either as an
individual or as part of an organization:
! commit or incite to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist activity;
51 Discussion of this topic was prepared by Michael John Garcia, Legislative Attorney.
52 For further background, see CRS Report RL32564, Immigration: Terrorist Grounds for
Exclusion of Aliens, by Michael John Garcia.
53 INA § 212(a)(3)(B)(iii); 8 U.S.C. § 1182(a)(3)(B)(iii) (defining “terrorist activity”).
54 INA §§ 212(a)(3)(B)(i)(I), 237(a)(4)(B); 8 U.S.C. §§ 1182(a)(3)(B)(i)(I), 1227(a)(4)(B).

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! prepare or plan a terrorist activity;
! gather information on potential targets for a terrorist activity;
! solicit funds or other things of value for a terrorist activity or
terrorist organization;
! solicit another individual to engage in terrorist activity or join a
terrorist organization; or
! commit an act that the alien knows, or reasonably should know,
provides material support — including a safe house, transportation,
communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or
training — to an individual or organization that the alien knows or
should reasonably know has committed or plans to commit a
terrorist activity.55
With respect to acts related to a “terrorist organization,” acts through or on
behalf of an organization formally designated by the Government as terrorist are
covered regardless of an individual’s knowledge of the organization’s terrorist
connections. However, if an alien has acted as a solicitor or provided material
support for an organization that has not been formally designated as a terrorist
organization by the United States, but which has nevertheless committed, incited,
planned, prepared, or gathered information for a terrorist activity, the alien may be
deemed not to have engaged in terrorist activity himself if he can demonstrate that
he did not and should not have reasonably known that his solicitation or material
support would further the organization’s terrorist activities.56
Under present law, the material support clause within the INA’s definition of
“engage in terrorist activity” may be waived in application to a specific alien if the
Secretary of State, after consultation with the Attorney General, or the Attorney
General, after consultation with the Secretary of State, concludes in his sole
unreviewable discretion that this clause should not apply.57
Changes Proposed by H.R. 418 to the Definition of “Engage in
Terrorist Activity”. Section 103(b) of H.R. 418 would replace the current
definition of “engage in terrorist activity” found in INA § 212(a)(3)(B)(iv) with a
new definition. For the most part, this definition would be identical to the previous
version. However, a few significant changes would also be made.
More Stringent Provisions Relating to Material Support, Solicitation
of Funds or Participation in Nondesignated Terrorist
Organizations/Activities. H.R. 418 would make it more difficult for an alien
who has provided material support or acted as a solicitor for either a person engaged
55 INA § 212(a)(3)(B)(iv); 8 U.S.C. § 1182(a)(3)(B)(iv).
56 INA § 212(a)(3)(B)(iv)(IV)-(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)-(VI). If an alien
provides material support for, or solicits funding or participation in, a terrorist activity or
a group designated as a terrorist organization by the United States, he is deemed to have
engaged in terrorist activity.
57 INA § 212(a)(3)(B)(iv)(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).

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in terrorist activity or a non-designated terrorist organization to avoid being found to
have engaged in terrorist activity himself. Under present law, an alien may avoid
being found to have engaged in terrorist activity if he can demonstrate that he did not
and should not have reasonably known that his solicitation or material support to an
individual or non-designated terrorist organization would further terrorist activities.58
Pursuant to the amendments proposed by H.R. 418 § 103(b), an alien would have to
demonstrate by clear and convincing evidence (a higher standard) that he did not and
should not have reasonably known that his solicitation or material support would
further a terrorist activity or organization in order to be found not to have engaged
in terrorist activity himself.59
Removes Authority to Waive Material Support Provision. H.R. 418
removes the authority of the Secretary of State and Attorney General to waive
application of the material support clause within the INA’s definition of “engage in
terrorist activity.”
Effective Date of Proposed Changes to the Definition of “Engage
in Terrorist Activity”. Pursuant to § 103(c) of H.R. 418, the proposed changes to
the INA’s definition of “engage in terrorist activity” would be effective on the date
of H.R. 418’s enactment, and apply to removal proceedings instituted before or after
H.R. 418’s enactment, as well as to acts and conditions constituting a ground for
inadmissibility occurring or existing before or after H.R. 418’s enactment.
Definition of “Terrorist Organization”
The INA defines “terrorist organization” to include both groups designated as
such by the Secretary of State and non-designated groups that engage in specified
terror-related activities.60 Certain forms of assistance to a “terrorist organization”are
grounds for inadmissibility and deportability because they amount to “engaging in
a terrorist activity”. Furthermore, under current law, certain memberships in or
associations with a “terrorist organization” may be grounds for inadmissibility even
though such membership or association, vel non, may not make an alien deportable.61
Accordingly, amending the definition of “terrorist organization” might have a
considerable impact on the reach of other terrorism-related provisions of the INA.
Current Law Defining “Terrorist Organization”. INA § 212(a)(3)(B)(vi)
presently defines “terrorist organization” as including:
58 INA § 212(a)(3)(B)(iv)(IV)-(VI); 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)-(VI).
59 Under H.R. 418, if an alien solicits funding or participation or material support for either
a terrorist activity or a group designated as a terrorist organization by the United States, he
is deemed to have engaged in terrorist activity. See H.R. 418 § 103(b). This standard is the
same as that found in current law.
60 The USA PATRIOT Act amended INA § 212 to expand the definition of “terrorist
organization” to potentially include terrorist organizations not designated by the Secretary
of State pursuant to INA § 219.
61 See INA §§ 212(a)(3)(B)(i)(IV)-(V), 212(a)(3)(F); 8 U.S.C. §§ 1182 (a)(3)(B)(i)(IV)-(V),
1182(a)(3)(F).

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! any group designated by the Secretary of State as a terrorist
organization pursuant to INA § 219;62
! upon publication in the Federal Register, any group designated as a
terrorist organization by the Secretary of State in consultation with
or upon the request of the Attorney General, after finding that the
organization commits, incites, plans, prepares, gathers information,
or provides material support for terrorist activities; or
! a group of two or more individuals, whether organized or not, which
commits, incites, plans, prepares, or gathers information for terrorist
activities.63
Changes Proposed by H.R. 418. Section 103(c) of H.R. 418 amends the
current definition of “terrorist organization” found in INA § 212(a)(3)(B)(vi). The
proposed amendments, discussed below, are significant and, in combination with the
proposed expansion of the types of associations with a terrorist organization that can
lead to an alien’s inadmissibility/deportation, may greatly amplify the reach of the
terrorism provisions of the INA generally. Among other contexts, the proposed
changes could especially impact aliens associated with groups that are part of a web
of fund raising that is found to support a terrorist activity in some measure.
Retention of Attorney General’s Role in the Designation of Terrorist
Organizations. Most of the authority to administer immigration law that formerly
was held by the Attorney General has been transferred to the Secretary of Homeland
Security, though some authorities have been retained. Section 103(c) of H.R. 418
would provide both the Secretary of Homeland Security and the Attorney General
with an express role in the designation of groups as terrorist organizations that are not
otherwise designated as such by the Secretary of State pursuant to INA § 219. H.R.
418 would amend the INA’s definition of “terrorist organization” to include any
group designated as such by the Secretary of State, in consultation with or upon the
request of the Attorney General or the Secretary of Homeland Security, to designate
a group as a terrorist organization after finding that the organization “engages in
terrorist activity,” as defined under INA § 212(a)(3)(B)(iv).
Expanding the Activities Qualifying a Nondesignated Group as a
Terrorist Organization.
H.R. 418’s proposed amendment to the INA’s
definition of “terrorist organization” could significantly increase the number of
groups that would constitute terrorist organizations despite not being designated as
such by the Secretary of State.
First, under current law, a group not otherwise designated by the Secretary of
State can only be deemed a terrorist organization if the group commits, incites,
plans, prepares, or gathers information for terrorist activity.64 Under H.R. 418, a
62 For further discussion of this provision, see CRS Report RL32120; The ‘FTO List’ and
Congress: Sanctioning Designated Foreign Terrorist Organizations, by Audrey Kurth
Cronin.
63 INA § 212(a)(3)(B)(vi); 8 U.S.C. § 1182 (a)(3)(B)(vi).
64 See INA § 212(a)(3)(B)(vi)(III); 8 U.S.C. § 1182 (a)(3)(B)(vi)(III).

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group not otherwise designated as a terrorist organization could also be considered
such if it solicits funds or membership for a terrorist activity or terrorist organization
or otherwise provides material support for a terrorist activity or organization. The
reach of this extension may not be altogether clear: it appears uncertain as to whether
or how a group could escape coverage by showing that it could not reasonably have
known that an organization for which it solicited or provided material support was
itself involved in conducting terrorist acts or supporting a “terrorist organization,”
(as redefined), and so on down the chain.
Second, H.R. 418 § 103(c) would further amend “terrorist organization” to
include any non-designated group that has a subgroup that “engages in terrorist
activity,” as expanded by H.R. 418 in this context to include either (1) direct
participation in or support of a terrorist activity or organization, or (2) indirect
support through solicitation, recruitment, etc. The upshot of the inclusion of
subgroups may be to further lower the threshold for how substantial, apparent, and
immediate a group’s support must be for a terrorist activity or organization for the
group to be considered “terrorist” and for its members to potentially fall within the
terrorism provisions of the INA. For example, if organization A has a subgroup A1
that raises funds for organization B (among other groups) and organization B
distributes funds to organization C (among other groups), which has a subgroup C1
that at some point provided support to a terrorist activity or organization,
organization A apparently would qualify as a terrorist organization (and its member
fall under the grounds of inadmissibility/deportability discussed below) absent the
group’s ability to somehow extricate itself by showing it could not have reasonably
drawn the connection between its subgroup’s fund raising and subgroup C1.
Effective Date of Proposed Changes to the Definition of “Terrorist
Organization”. Pursuant to § 103(c) of H.R. 418, the proposed changes to the
INA’s definition of “terrorist organization” would be effective on the date of H.R.
418’s enactment, and apply to removal proceedings instituted before or after H.R.
418’s enactment, as well as to acts and conditions constituting a ground for
inadmissibility occurring or existing before or after H.R. 418’s enactment.
Terror-Related Grounds for Inadmissibility of Aliens
The INA categorizes certain classes of aliens as inadmissible, making them
“ineligible to receive visas and ineligible to be admitted to the United States.”65
Aliens who “engage in terrorist activity,” as defined by INA § 212(a)(3)(B)(iv), are
inadmissible. In addition, several other terror-related activities are grounds for
inadmissibility.
Current Law. Pursuant to INA § 212(a)(3)(B)(i),66 an alien is inadmissible on
terror-related grounds if the alien:
! has engaged in terrorist activity;
65 INA § 212(a); 8 U.S.C. § 1182(a).
66 8 U.S.C. § 1182(a)(3)(B)(i).

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! is known or reasonably believed by a consular officer or the
Attorney General to be engaged in or likely to engage in terrorist
activity upon entry into the United States;
! has, under circumstances indicating an intention to cause death or
serious bodily harm, incited terrorist activity;
! is a representative of (1) a foreign terrorist organization, as
designated by the Secretary of State, or (2) a political, social or other
similar group whose public endorsement of acts of terrorist activity
the Secretary of State has determined undermines United States
efforts to reduce or eliminate terrorist activities;
! is a member of a foreign terrorist organization as designated by the
Secretary of State under INA § 219, or an organization which the
alien knows or should have known is a terrorist organization;
! is an officer, official, representative, or spokesman of the Palestine
Liberation Organization;
! has used his position of prominence within any country to endorse
or espouse terrorist activity, or to persuade others to support terrorist
activity or a terrorist organization, in a way that the Secretary of
State has determined undermines United States efforts to reduce or
eliminate terrorist activities; or
! is the spouse or child of an alien who is inadmissible under this
section, if the activity causing the alien to be found inadmissible
occurred within the last five years, unless the spouse or child (1) did
not and should not have reasonably known about the terrorist
activity or (2) in the reasonable belief of the consular officer or
Attorney General, has renounced the activity causing the alien to be
found inadmissible under this section.67
In addition, INA § 212(a)(3)(F) designates an alien as inadmissible if the
Secretary of State, after consultation with the Attorney General, or the Attorney
General, after consultation with the Secretary of State, determines that the alien has
been associated with a terrorist organization and intends while in the United States
to engage solely, principally, or incidentally in activities that could endanger the
welfare, safety, or security of the United States.
Changes to Terror-Related Grounds for Inadmissibility Proposed
by H.R. 418. Section 103(a) of H.R. 418 would reorganize and expand the
terror-related grounds for inadmissibility. Given that H.R. 418 § 103(b)-(c) would
broaden the INA’s definitions of “terrorist organization” and “engage in terrorist
activity” — two phrases frequently used in the INA provisions establishing the
terror-related grounds for inadmissibility — H.R. 418 would expand the
terror-related grounds for inadmissibility more broadly than might first appear. The
interplay between the proposed definition of “terrorist organization,” discussed
above, and the expansion of covered support and associational activities, discussed
below, may be particularly significant in broadening the grounds for inadmissibility.
67 The limited exception to inadmissibility for the spouse and child of an alien who is
inadmissible on terror-related grounds is found in INA § 212(a)(3)(B)(ii).

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The following paragraphs discuss the alterations that H.R. 418 would make to
the terror-related grounds for inadmissibility.
Effects of Expanded Definition of “Engage in Terrorist Activity” on
Terror-Related Grounds for Inadmissibility. As in current law, H.R. 418
provides that any alien who has engaged in a terrorist activity is inadmissible.68 As
previously mentioned, § 103(b) of H.R. 418 would expand the applicable definition
of the term “engage in terrorist activity.” Thus, under H.R. 418, an alien who
solicited on behalf of or provided material support for a non-designated terrorist
organization would be inadmissible unless he demonstrated by clear and convincing
evidence that he did not and should not have reasonably known that he was soliciting
on behalf of or providing material support for a group that met the definition of
“terrorist organization” found in INA § 212(a)(3)(B)(vi)(III).
Retention of Attorney General’s Role in Deeming an Alien
Inadmissible for Terror-Related Activity. Though recent law has transferred
most immigration enforcement authority to the Department of Homeland Security,
H.R. 418 would allow a consular officer, the Secretary of Homeland Security, or the
Attorney General to declare an alien inadmissible if the alien is known to be engaged
in terrorist activity or is likely to engage in such activity upon entry into the United
States.69
Incitement of Terrorist Activity. H.R. 418 does not alter the current ground
for inadmissibility on account of the incitement of terrorist activity.
Representation of a Terrorist Organization or Political Group
Espousing Terrorist Activity. Under current law, a representative of a foreign
terrorist organization designated as such by the Secretary of State is inadmissible.
H.R. 418 would expand this ground for inadmissibility to deny admission to a
representative of any group that constituted a “terrorist organization,” as defined
under INA § 212(a)(3)(B)(vi). As previously discussed, H.R. 418 would expand the
breadth of the term “terrorist organization” for purposes of the INA.
H.R. 418 would also make inadmissible any representative of a political, social
or other similar group that endorses or espouses terrorist activity.70 Under current
law, such representatives are only inadmissible if (1) the organization publicly
endorses terrorist activity and (2) the Secretary of State determines that such
endorsement undermines U.S. efforts to reduce or eliminate terrorist activities.71
Membership in a Terrorist Organization. H.R. 418 would substantially
increase the grounds for inadmissibility on account of membership in a terrorist
organization. Presently, membership in a foreign terrorist organization designated
by the Secretary of State under INA § 219, or membership in an organization that the
68 H.R. 418, § 103(a).
69 INA § 212(a)(3)(B)(i)(II); 8 U.S.C. § 1182(a)(3)(B)(i)(II).
70 H.R. 418, § 103(a).
71 INA § 212(a)(3)(B)(i)(IV); 8 U.S.C. § 1182(a)(3)(B)(i)(IV).

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alien knows or should have known is a terrorist organization, makes an alien
inadmissible.72 H.R. 418 would facilitate the removal of a member of a
non-designated terrorist organization by shifting the burden from the Government to
show that the alien knew or should have known the nature of the organization to the
alien to demonstrate by clear and convincing evidence that he did not know, and
should not reasonably have known, that the organization was a terrorist organization.
Again, the proposed expansion of “terrorist organization” could significantly
amplify the potential impact of these changes.
Officers, Spokesmen, and Representatives of the Palestine
Liberation Organization. In both current law and H.R. 418, an alien who is an
officer, official, representative, or spokesman of the Palestine Liberation
Organization is inadmissible.
Expanding Inadmissibility Grounds for Espousal of Terrorist
Activity. Under current law, aliens are inadmissible for the espousal of terrorist
activity only if they (1) use positions of prominence (within any country) to endorse
or espouse terrorist activity, or to persuade others to support terrorist activity or a
terrorist organization, and (2) do so in a way that undermines U.S. efforts to reduce
or eliminate terrorist activities, based on a determination by the Secretary of State.
H.R. 418 would make inadmissible any alien who espouses or endorses terrorist
activity, or persuades others to support terrorist activity or a terrorist organization,
regardless of whether the alien has a position of prominence and his espousal
undermines U.S. efforts to reduce terrorism in the opinion of the Secretary of State.
It is important to note that this ground for inadmissibility does not include a
mens rea requirement. It appears that an alien who persuades others to support a
terrorist organization would be deemed inadmissible even if the alien had no
knowledge of the organization’s terrorist activities. The possibility of this occurring
may not be improbable, given H.R. 418’s proposed expansion of the definition of
“terrorist organization” to include any group that engages, or has a subgroup that
engages in terrorist activity, including soliciting funds or otherwise providing
material support for a “terrorist organization” (which itself may be one solely because
it has, for example, a subgroup that has solicited or provided funds to another
“terrorist organization”).
Receiving Military-Type Training from or on Behalf of a Terrorist
Organization. H.R. 418 would make inadmissible any alien who has received
military-type training from or on behalf of any organization that, at the time the
training was received, was a terrorist organization, a term defined under INA §
212(a)(3)(B)(vi) (and amended by H.R. 418 § 103(c)). Currently, the receipt of such
training is only a deportable offense.73 It is important to note that this ground for
inadmissibility does not include a mens rea requirement, and does not specify that
the organization must be designated as a terrorist organization by the United States.
72 INA § 212(a)(3)(B)(i)(V); 8 U.S.C. § 1182(a)(3)(B)(i)(V).
73 See INA § 237(a)(4)(E); 8 U.S.C. § 1227(a)(4)(E) (as amended by the Intelligence Reform
and Terrorist Prevention Act of 2004, Pub. L. No. 108-458, § 5402).

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Accordingly, it appears that an alien who receives military-type training from or on
behalf of a terrorist organization would be inadmissible, regardless of whether the
alien was aware or should have been aware that the organization was engaged in
terrorist activity.
Inadmissibility of a Spouse or Child of an Alien Inadmissible on
Terror-Related Grounds. H.R. 418 neither alters the inadmissibility of the
spouse or child of an alien who was deemed inadmissible on terror-related grounds
nor eliminates the current exception to inadmissibility for an alien’s spouse or child
who (1) did not and should not have reasonably known about the terrorist activity or
(2) in the reasonable belief of the consular officer or Attorney General, has renounced
the terror-related activity causing the alien to be found inadmissible.
Association with a Terrorist Organization. H.R. 418 does not amend
INA § 212(a)(3)(F), which designates an alien as inadmissible if the Secretary of
State, after consultation with the Attorney General, or the Attorney General, after
consultation with the Secretary of State, determines that the alien has been associated
with a terrorist organization and intends while in the United States to engage solely,
principally, or incidentally in activities that could endanger the welfare, safety, or
security of the United States.
Effective Date of Proposed Changes to the Terror-Related Grounds
for Inadmissibility. Pursuant to § 103(c) of H.R. 418, the proposed changes to the
terror-related grounds for inadmissibility would be effective on the date of H.R.
418’s enactment, and apply to removal proceedings instituted before or after H.R.
418’s enactment, as well as to acts and conditions constituting a ground for
inadmissibility occurring or existing before or after H.R. 418’s enactment.
Terror-Related Grounds for Deportability of Aliens
Aliens found to have engaged in terror-related activities following admission
into the United States may be deportable. Presently, the terror-related grounds for
inadmissibility are significantly broader than those for deportability.
Current Law. INA § 237(a)(4)(B) provides that an alien is deportable if he
commits any of the actions falling under the INA’s definition of “engage in terrorist
activity.” Pursuant to § 5402 of the Intelligence Reform and Terrorism Prevention
Act of 2004, any alien who has received military-type training from or on behalf of
any organization that, at the time the training was received, was designated as a
terrorist organization by the Secretary of State, is deportable.74
Changes Proposed by H.R. 418. Section 104(a) of H.R. 418 would
significantly expand the terror-related grounds for deportability, so that any alien who
would be considered inadmissible under the provisions of INA §§ 212(a)(3)(B)
(relating to terrorist activity) or 212(a)(3)(F) (relating to association with a terrorist
organization) would also be deportable. The following sections discuss the new
deportation grounds that would be added by H.R. 418, presuming that H.R. 418’s
74 Id.

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provisions expanding the scope of INA § 212(a)(3)(B) (terror-related grounds for
inadmissibility) were also enacted.
Effects of Expanded Definition of “Engage in Terrorist Activity” on
Terror-Related Grounds for Deportability. A person who engages in terrorist
activity is both inadmissible and deportable under current law. If H.R. 418 is
enacted, this would remain the case. However, as previously mentioned, § 103(b) of
H.R. 418 would also expand the applicable definition of the term “engage in terrorist
activity.” Thus, an alien who provided material support or solicited funds or
participation in a non-designated terrorist organization would be deportable unless
he demonstrated by clear and convincing evidence that he did not and should not
have reasonably known that the organization was a terrorist organization.
Designation as Deportable for Terror-Related Activity by a Consular
Officer, the Attorney General, or the Secretary of Homeland Security.
H.R. 418 would enable a consular officer, the Attorney General, or the Secretary of
Homeland Security to declare an alien inadmissible who is known to be engaged in
terrorist activity or is likely to engage in such activity upon entry into the United
States. Although H.R. 418 provides that “any alien considered inadmissible [on
terror-related grounds]...is deportable,”75 it is unclear whether this would mean that
a consular officer, the Attorney General, or the Secretary of Homeland Security could
declare an alien deportable if the alien was known to be engaged in terrorist activity
or was likely to engage in such activity within the United States or what procedures
would apply in such a circumstance.
Incitement of Terrorist Activity. H.R. 418 would make any alien who
incited terrorist activity, under circumstances indicating an intention to cause death
or serious bodily harm, deportable as well as inadmissible.
Representation of a Terrorist Organization or Political Group
Espousing Terrorist Activity. H.R. 418 would make deportable as well as
inadmissible any representative of either (1) a terrorist organization or (2) a political,
social or other similar group that endorses or espouses terrorist activity.
Membership in a Terrorist Organization. H.R. 418 would make it a
deportable offense for an alien to be either (1) a member of a terrorist organization
designated by the Secretary of State, or (2) a member of any group that constitutes
a terrorist organization, unless the alien can demonstrate by clear and convincing
evidence, that he did not know, and should not reasonably have known, that the
organization was a terrorist organization.
Officers, Spokesmen, and Representatives of the Palestine
Liberation Organization. Pursuant to H.R. 418, an alien who is an officer,
official, representative, or spokesman of the Palestine Liberation Organization would
be made deportable.
75 H.R. 418, § 104(a).

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CRS-22
Espousal of Terrorist Activity. An alien who espouses or endorses terrorist
activity, or persuades others to support terrorist activity or a terrorist organization,
would be deportable as well as inadmissible if H.R. 418 were enacted. As discussed
previously, this ground for inadmissibility/deportability does not include a mens rea
requirement, meaning that an alien who persuades others to support a terrorist
organization would be considered deportable even if the alien had no knowledge of
the organization’s terrorist activities.
Receiving Military-Type Training from or on Behalf of a Terrorist
Organization. Section 104(b) H.R. 418 would repeal the current grounds for
deportability on account of receiving military-type training from or on behalf of a
terrorist organization designated by the Secretary of State. Instead, the provision
added by H.R. 418 making aliens who receive military-type training from or on
behalf of any terrorist organization (i.e., not simply those designated as such by the
Secretary of State) inadmissible would also be grounds for deporting an alien. Given
H.R. 418’s amendments to the INA’s definition of “terrorist organization” and the
terror-related grounds for inadmissibility, it appears that an alien who receives
military-type training from or on behalf of a terrorist organization would be
deportable regardless of whether the alien was aware that the organization was
engaged in terrorist activity.
Deportability of a Spouse or Child of an Alien Inadmissible on
Terror-Related Grounds. H.R. 418 would make the spouse or child of an alien
inadmissible on terror-related grounds deportable, if the terror-related activity
causing the alien to be inadmissible occurred within the last five years, unless the
alien’s spouse or child (1) did not and should not have reasonably known about the
terrorist activity or (2) in the reasonable belief of the consular officer or Attorney
General, has renounced the terror-related activity causing the alien to be found
inadmissible.
Association with a Terrorist Organization as Grounds for
Deportability. H.R. 418 would make an alien deportable on the same grounds that
the alien would be inadmissible pursuant to INA § 212(a)(3)(F). Accordingly, an
alien would be deportable if the Secretary of State, after consultation with the
Attorney General, or the Attorney General, after consultation with the Secretary of
State, determines that the alien has been associated with a terrorist organization and
intends while in the United States to engage solely, principally, or incidentally in
activities that could endanger the welfare, safety, or security of the United States.
Effective Date of Proposed Changes to the Terror-Related Grounds
for Deportability. Pursuant to § 104(a)(2) of H.R. 418, the proposed changes to
the terror-related grounds for deportability would be effective on the date of H.R.
418’s enactment, and would apply to acts and conditions constituting a ground for
removal occurring or existing before or after H.R. 418’s enactment.

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Consequences of Terror-Related Activities on Eligibility for
Relief from Removal
An alien found to have engaged in terror-related activities is not only
inadmissible and potentially deportable, but is also ineligible for various forms of
relief from removal. In modifying the terror-related grounds for inadmissibility and
deportability, H.R. 418 would also affect certain aliens’ eligibility for relief from
removal. Specifically, H.R. 418 would expand the scope of aliens who were
ineligible for asylum, withholding of removal, and cancellation of removal.
Asylum. Asylum is a discretionary form of relief from removal available to
aliens in the U.S. who have a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
Aliens who have been admitted into the U.S. or who entered surreptitiously are
generally in the posture of potentially “deportable” aliens and removable under
grounds for deportation. Aliens otherwise present in the U.S. — “paroled” aliens and
aliens presently arriving at an airport or other port of entry, for example — are in the
posture of potentially “inadmissible” aliens and removable under the grounds for
inadmissibility.
Aliens engaged in terrorist activity are ineligible for asylum, as are aliens who
fall under most other terrorism provisions. Mere membership in a terrorist
organization is perhaps the most notable exception to this automatic disqualification.
H.R. 418 would preserve this exception for inadmissible aliens, but as explained
below, it might, as presently drafted, deny this exemption to deportable aliens. Other
changes in current law also might result due to changes in cross-references and
section numbering arising from H.R. 418.
Current Restrictions on Asylum Eligibility for Aliens Deportable on
Terror-Related Grounds. Presently, a deportable alien is ineligible for asylum
relief on terror-related grounds if he is “removable under [INA] § 237(a)(4)(B)
(relating to terrorist activity).” Presently, an alien is removable under § 237(a)(4)(B)
only if he commits certain actions defined as “engaging in terrorist activity” under
INA § 212(a)(3)(B)(iv). As previously mentioned, “engaging in terrorist activity” is
only one of several terror-related grounds under which an alien may be deemed
inadmissible.
H.R. 418’s Effects upon Asylum Eligibility Restrictions for Aliens
Deportable on Terror-Related Grounds. INA § 208(b)(2)(A)(v) currently
makes ineligible for asylum any alien who is (1) inadmissible on specified terrorism
grounds (those terror-related grounds for inadmissibility provided under subclause
(I), (II), (III), (IV), and (VI) of INA § 212 (a)(3)(B)(i)) or (2) deportable under INA
§ 237(a)(4)(B) (relating to terrorist activity). With regard to (2), H.R. 418 would
amend INA § 237(a)(4)(B), so that a deportable alien would not only be deportable
for engaging in terrorist activity, but also for committing terror-related activity that
would make the alien inadmissible under INA § 212 — including those activities that
do not make an alien who is inadmissible on terror-related grounds ineligible for
asylum. Accordingly, if enacted in its present form, H.R. 418 would appear to create
a disparity in asylum eligibility, under which an alien designated as inadmissible on

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CRS-24
account of certain terror-related activities, would be eligible for asylum relief, while
an alien who was deportable on the same grounds would be ineligible.
Pursuant to amendments made by H.R. 418, which do not directly alter the
INA’s asylum eligibility provisions but do make the terror-related grounds for
deportability the same as those for inadmissibility, a deportable alien would be
ineligible for asylum on terror-related grounds if:
! the alien has engaged in a terrorist activity;
! a consular officer, the Attorney General, or the Secretary of
Homeland Security knows, or has reasonable ground to believe, that
the alien is engaged in or is likely to engage after entry in any
terrorist activity;
! the alien has, under circumstances indicating an intention to cause
death or serious bodily harm, incited terrorist activity;
! the alien is a representative of a terrorist organization, or a political,
social or other similar group that endorses or espouses terrorist
activity;
! the alien is a member of a group designated as a terrorist
organization by the United States;
! the alien is a member of a group of two or more individuals, whether
organized or not, that engages in, or has a subgroup that engages in
a terrorist activity, unless the alien can demonstrate by clear and
convincing evidence that the alien did not know, and should not
reasonably have known, that the organization was a terrorist
organization;
! the alien endorses or espouses terrorist activity or persuades others
to endorse or espouse terrorist activity or support a terrorist
organization (possibly including an organization that the alien does
not know has engaged in terrorist activities, but nevertheless meets
the INA’s definition of “terrorist organization”);
! the alien has received military-type training from or on behalf of any
organization that, at the time the training was received, was a
terrorist organization (possibly including an organization that the
alien does not know to engage in terrorist activities, but nevertheless
meets the INA’s definition of “terrorist organization”);
! a spouse or child of an alien who is inadmissible on terror-related
grounds, if the activity causing the alien to be found inadmissible
occurred within the last five years, unless the spouse or child (1) did
not and should not have reasonably known about the terrorist
activity or (2) in the reasonable belief of the consular officer or
Attorney General, has renounced the terror-related activity causing
the alien to be found inadmissible; or
! the Secretary of State, after consultation with the Attorney General,
or the Attorney General, after consultation with the Secretary of
State, determines that the alien has been associated with a terrorist
organization and intends while in the United States to engage solely,

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principally, or incidentally in activities that could endanger the
welfare, safety, or security of the United States.76
Current Restrictions on Asylum Eligibility for Aliens Inadmissible
on Terror-Related Grounds. Pursuant to INA § 208(b)(2)(A)(v), an inadmissible
alien is ineligible for asylum only if the alien “is inadmissible under subclause (I),
(II), (III), (IV), or (VI) of [INA] § 212(a)(3)(B)(i).” Under current law, an
inadmissible alien would be denied eligibility on terror-related grounds if:
! he has engaged in a terrorist activity (subclause I);
! a consular officer or the Attorney General knows, or has reasonable
ground to believe, that the alien is engaged in or is likely to engage
after entry in any terrorist activity (subclause II);
! the alien has incited terrorist activity, under circumstances indicating
an intention to cause death or serious bodily harm (subclause III);
! the alien is a representative of a foreign terrorist organization
designated by the Secretary of State under INA § 219 or a political,
social or other similar group whose public endorsement of acts of
terrorist activity the Secretary of State has determined undermines
United States efforts to reduce or eliminate terrorist activities, unless
the Attorney General determines, in the Attorney General’s
discretion, that there are not reasonable grounds for regarding the
alien as a danger to the security of the United States (subclause
IV);77 or
! the alien has used the alien’s position of prominence within any
country to endorse or espouse terrorist activity, or to persuade others
to support terrorist activity or a terrorist organization, in a way that
the Secretary of State has determined undermines United States
efforts to reduce or eliminate terrorist activities (subclause VI).78
Changes to Asylum Eligibility for Inadmissible Aliens Made by H.R.
418. INA § 208(b)(2)(A)(v) makes ineligible for asylum any alien who “is
inadmissible under subclause (I), (II), (III), (IV), or (VI) of [INA] § 212(a)(3)(B)(i)”
(terror-related grounds for alien inadmissibility). As discussed previously, § 103(a)
of H.R. 418 would significantly modify INA § 212(a)(3)(B)(i) by amending and
rearranging the terror-related grounds for inadmissibility found in INA §
212(a)(3)(B)(i). For example, whereas under current law subclause (VI) of INA §
212(a)(3)(B)(i) makes inadmissible (and also ineligible for asylum, when as
referenced by INA § 208(b)(2)(A)(v)) any alien who has used his position of
76 Id. §§ 103(a) (proposing amendments to the terror-related grounds for inadmissibility
found in INA § 212(a)(B)(i)), 104(a); INA § 212(a)(3)(F), 8 U.S.C. § 1182(a)(3)(F).
77 This exception exists because of the express language of INA § 208(b)(2)(v), which
provides that an alien is ineligible for asylum if “the alien is inadmissible under subclause
(I), (II), (III), (IV), or (VI) of [INA] § 212(a)(3)(B)(i)...unless, in the case only of an alien
inadmissible under subclause (IV)...the Attorney General determines, in the Attorney
General’s discretion, that there are not reasonable grounds for regarding the alien as a
danger to the security of the United States.”
78 INA § 208(b)(2)(A)(v); 8 U.S.C. § 1158(b)(2)(A)(v).

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prominence to endorse or espouse terrorist activity, pursuant to the amendments
made by H.R. 418, subclause (VI) would instead describe the inadmissibility ground
for aliens who are members of non-designated terrorist organizations (espousal of
terrorist activity would still be a ground for inadmissibility, but would now be found
in subclause (VII) of INA § 212(a)(3)(B)(i)). By rearranging and amending the INA
provisions relating to the terror-related grounds for inadmissibility, H.R. 418 would
affect the scope of the terror-related grounds for asylum ineligibility that refer to
those amended provisions.
If H.R. 418 is enacted in its current form, asylum eligibility would continue to
be denied only those aliens who are inadmissible under subclause (I), (II), (III), (IV),
or (VI) of INA § 212(a)(3)(B). Pursuant to the amendments proposed by H.R. 418
to the terror-related grounds for inadmissibility, which amend and rearrange the
terror-related grounds for inadmissibility described in INA § 212(a)(3)(B), an
inadmissible alien would be denied asylum on terror-related grounds if:
! the alien has engaged in a terrorist activity (subclause I, as
amended);
! a consular officer, the Attorney General, or the Secretary of
Homeland Security knows, or has reasonable ground to believe, that
the alien is engaged in or is likely to engage after entry in any
terrorist activity (subclause II, as amended);
! the alien has, under circumstances indicating an intention to cause
death or serious bodily harm, incited terrorist activity (subclause III,
as amended);
! the alien is a representative of a terrorist organization, or a political,
social or other similar group that endorses or espouses terrorist
activity, unless the Attorney General determines, in the Attorney
General’s discretion, that there are not reasonable grounds for
regarding the alien as a danger to the security of the United States
(subclause IV, as amended); or
! the alien is a member of non-designated terrorist organization,
whether organized or not, which engages in, or has a subgroup
which engages in a terrorist activity, unless the alien can
demonstrate by clear and convincing evidence that the alien did not
know, and should not reasonably have known, that the organization
was a terrorist organization (subclause VI, as amended).79
Because of the manner in which H.R. 418 would amend the INA provision
concerning the terror-related grounds for inadmissibility, an inadmissible alien would
no longer be automatically ineligible for asylum if he has used a position of
prominence to endorse or espouse terrorist activity (although, as discussed
previously, a deportable alien would be ineligible for asylum on such grounds).80
On the other hand, membership in a non-designated terrorist organization would
79 See H.R. 418 § 103(amending the terror-related grounds for inadmissibility and the INA’s
definition of “terrorist organization” and “engage in terrorist activity”).
80 Compare INA § 212(a)(3)(B)(i)(VI) with H.R. 418 § 103(a) (amending and rearranging
the terror-related grounds for inadmissibility).

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automatically deny an alien eligibility for asylum relief, unless the alien could
demonstrate by clear and convincing evidence that the alien did not know, and
should not reasonably have known, that the organization was a terrorist organization.
Withholding of Removal. Apart from asylum is the separate remedy of
withholding of removal. Like asylum, withholding of removal is premised upon a
showing of prospective persecution of an alien if removed to a particular country.81
In certain circumstances, aliens are ineligible for withholding of removal, including
in cases where the Attorney General decides:
! that having been convicted by a final judgment of a particularly
serious crime, an alien is a danger to the community of the United
States;
! there are serious reasons to believe that the alien committed a
serious nonpolitical crime outside the United States before the alien
arrived in the United States; or
! that there are reasonable grounds to believe that the alien is a danger
to the security of the United States.82
By statute, an alien who is described in INA § 237(a)(4)(B) (i.e., is engaged or
has engaged in terrorist activity) is reasonably regarded as a danger to the security of
the United States, and is therefore ineligible for withholding of removal.83
Current Restrictions on Withholding of Removal Eligibility for
Aliens Deportable on Terror-Related Grounds. Presently, an alien lawfully
admitted into the United States is ineligible for withholding of removal on
terror-related grounds only if he is deportable under INA § 237(a)(4)(B), which
makes an alien deportable if he is “engaged in terrorist activity,” as defined under
INA § 212(a)(3)(B)(iv).
H.R. 418’s Effects upon Withholding of Removal Eligibility for
Aliens Deportable on Terror-Related Grounds. H.R. 418 would amend INA
§ 237(a)(4)(B) to make an alien deportable on the same terror-related grounds that
make an alien inadmissible. Because H.R. 418 does not modify the present wording
of the INA’s withholding of removal eligibility requirements, an alien who is
removable pursuant to any of the expanded, terror-related grounds for deportability
would also be ineligible for withholding of removal.
Current Restrictions on Withholding of Removal Eligibility for
Aliens Inadmissible on Terror-Related Grounds. The INA does not specify
that aliens who are inadmissible on terror-related grounds are automatically ineligible
for withholding of removal, though they might nevertheless fulfill the criteria for
relief ineligibility. Currently, for example, an alien who is deportable on the grounds
that he has engaged in terrorist activity is ineligible for withholding of removal on
81 See INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). See also 8 C.F.R. § 208.16.
82 INA § 241(b)(3)(B); 8 U.S.C. § 1231(b)(3)(B).
83 Id.

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account of the danger he likely poses to the United States.84 An alien who is
inadmissible on account of engaging in terrorist activity would be ineligible for
withholding of removal for the same reason.
H.R. 418’s Effects upon Withholding of Removal Eligibility for
Aliens Inadmissible on Terror-Related Grounds. H.R. 418 would appear to
make aliens who are inadmissible on terror-related grounds ineligible for withholding
of removal. INA § 241(b)(3) provides that an alien who is described by INA §
237(a)(3)(B) is ineligible for withholding of removal. H.R. 418 amends §
237(a)(3)(B) to cover any alien who would be considered inadmissible on terror-
related grounds.85 Accordingly, it would appear that if H.R. 418 was enacted, an
alien who is inadmissible on terror-related grounds would also be ineligible for
withholding of removal.
Cancellation of Removal. The INA provides the Attorney General with the
discretionary authority to cancel the removal of certain permanent and nonpermanent
residents. However, aliens who are inadmissible or deportable on account of terror-
related activity are ineligible for such relief.
Current Restrictions on Cancellation of Removal Eligibility for
Aliens Deportable on Terror-Related Grounds. An alien is ineligible for
cancellation of removal if he is deportable under INA § 237(a)(4).86 Presently, the
only terror-related grounds under which an alien would be expressly ineligible for
cancellation of removal would be if the alien either engaged in terrorist activity, as
defined by INA § 212(a)(3)(B)(iv) or received military-type training from or on
behalf of a designated terrorist organization.87
H.R. 418’s Effects upon Cancellation of Removal Eligibility for
Aliens Deportable on Terror-Related Grounds. H.R. 418 would amend INA
§ 237(a)(4)(B) so that any alien who would be considered inadmissible on terror-
related grounds (as amended by H.R. 418) would also be deportable, significantly
increasing the terror-related grounds that may disqualify a deportable alien from
having his removal canceled.
Current Restrictions on Cancellation of Removal Eligibility for
Aliens Inadmissible on Terror-Related Grounds. An alien is ineligible for
cancellation of removal if he is inadmissible under INA § 212(a)(3), which contains
both security and terror-related grounds for inadmissibility.
H.R. 418’s Effects upon Cancellation of Removal Eligibility for
Aliens Inadmissible on Terror-Related Grounds. As discussed previously,
84 Id.
85 H.R. 418, § 104(a)(1).
86 INA § 240A(c)(4); 8 U.S.C. § 1229b(c)(4).
87 See INA § 237(a)(4); 8 U.S.C. § 1227(a)(4). A deportable alien involved in terror-related
activity might nevertheless be ineligible for cancellation of removal on security or foreign
policy grounds. See INA §§ 237(a)(4)(A), (C); 8 U.S.C. §§ 1227(a)(4)(A), (C).

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H.R. 418 would amend INA § 212(a)(3)(B)(i) to broaden the terror-related grounds
for inadmissibility. Accordingly, the category of inadmissible aliens who would be
ineligible for cancellation of removal on terror-related grounds would be expanded.
IV. Improved Security for Drivers’ Licenses and
Personal Identification Cards 88
Prior to the passage of the Intelligence Reform and Terrorism Prevention Act
of 2004, standards with respect to drivers’ licenses and personal identification cards
were determined on a state-by-state basis with no national standards in place.89 Even
with the passage of the Intelligence Reform and Terrorism Prevention Act of 2004,
it appears that, with the exception of what is specifically provided for by the
legislation, a majority of the standards remain at the discretion of state and local
governments.90
H.R. 418 contains a number of provisions relating to improved security for
drivers’ licenses and personal identification cards, as well as instructions for states
that do not comply with its provisions. H.R. 418 would also repeal certain
overlapping and potentially conflicting provisions of the Intelligence Reform and
Terrorism Prevention Act of 2004.91
Current Law. The Intelligence Reform and Terrorism Prevention Act of 2004
delegates authority to the Secretary of Transportation, in consultation with the
Secretary of Homeland Security, empowering them to issue regulations with respect
88 Discussion of this topic was prepared by Todd B. Tatelman, Legislative Attorney.
89 Congressional action prior to 9/11 on national standards in this direction proved highly
controversial. For example, § 656 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (Pub. L. No.104-208, Division C) provided federal standards for
state drivers’ licenses and birth certificates when used as identification-related documents
for federal purposes. A state had two choices under this provision. It could require that each
of its licenses include the licensee’s Social Security number in machine-readable or visually-
readable form. Or the state could more minimally require that each applicant submit the
applicant’s Social Security number and verify the legitimacy of that number with the Social
Security Administration. However, this section became subject to widespread public
criticism shortly after its enactment, with opponents most frequently alleging that it could
be construed as a step toward a national identification card system. Congress blocked funds
to implement regulations aimed at assisting the states to adopt the Social Security number
requirements, and the underlying requirement itself was subsequently repealed in § 355 of
the Department of Transportation and Related Agencies Appropriations Act 2000 (Pub. L.
No. 106-69). Prior to 9/11, legislation aimed at discouraging national standards for
identification documents had gained bipartisan support and was thought likely to pass.
90 Pub. L. No. 108-458 §§ 7211-7214.
91 As mentioned previously, a bill containing only the provisions of H.R. 418 relating to
drivers’ licenses and personal identification cards, has also been introduced. See Driver’s
License Security and Modernization Act, H.R. 368, 109th Cong. (1st Sess. 2005).

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to minimum standards for federal acceptance of drivers’ licenses and personal
identification cards.92
The new law requires that the Secretary issue regulations within 18 months of
enactment that require each driver’s license or identification card, to be accepted for
any official purpose by a federal agency, to include the individual’s: (1) full legal
name; (2) date of birth; (3) gender; (4) driver’s license or identification card number;
(5) digital photograph; (6) address; and (7) signature.93 In addition, the cards are
required to contain physical security features designed to prevent tampering,
counterfeiting or duplication for fraudulent purposes; as well as a common machine-
readable technology with defined minimum elements.94 Moreover, states will be
required, pursuant to the new regulations, to confiscate a driver’s license or personal
identification card if any of the above security components is compromised.95
The statute also requires that the regulations address how drivers’ licences and
identification cards are issued by the states. Specifically, the regulations are required
to include minimum standards for the documentation required by the applicant, the
procedures utilized for verifying the documents used, and the standards for
processing the applications.96 The regulations are, however, prohibited from not only
infringing upon the “State’s power to set criteria concerning what categories of
individuals are eligible to obtain a driver’s license or personal identification card
from that State,”97 but also from requiring a state to take an action that “conflicts with
or otherwise interferes with the full enforcement of state criteria concerning the
categories of individuals that are eligible to obtain a driver’s license or personal
identification card.”98 In other words, it would appear that if a state grants a certain
category of individuals (i.e., aliens, legal or illegal) permission to obtain a license,
nothing in the forthcoming regulations is to infringe on that state’s decision or its
ability to enforce that decision. In addition, the regulations are also not to require a
92 See Pub. L. No. 108-458, § 7212. Whether limiting the standards to federal acceptance -
as opposed to direct federal prescriptions on the states - obviates federalism concerns under
Supreme Court jurisprudence, remains to be seen. The Court has held that in exercising its
power under the Commerce Clause, Congress may not “commandeer” the state regulatory
processes by ordering states to enact or administer a federal regulatory program. See New
York v United States, 505 U.S. 144 (1992). The Court has extended this principle by
holding, in Printz v. United States, that Congress may not circumvent the prohibition on
commandeering a state’s regulatory processes “by conscripting the State’s officers directly.”
Printz v. United States, 521 U.S. 898, 935 (1997). It may be possible to argue that, because
the issuance of drivers’ licenses remains a state regulatory function, the minimum issuance
and verification requirements established in this bill, even if limited to federal agency
acceptance, constitute an effective commandeering by Congress of the state regulatory
process, or a conscription of the state and local officials who issue the licenses.
93 Pub. L. No. 108-458, § 7212(b)(2)(D)(i)-(vii).
94 Id. at § 7212(b)(2)(E)-(F).
95 Id. at § 7212(b)(2)(G).
96 Id. at § 7212(b)(2)(A)-(C).
97 Id. at § 7212(b)(3)(B).
98 Id. at § 7212(b)(3)(C).

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single uniform design, and must include procedures designed to protect the privacy
rights of individual applicants.99
Finally, the law requires the use of negotiated rulemaking pursuant to the
Administrative Procedure Act.100 This process is designed to bring together agency
representatives and concerned interest groups to negotiate the text of a proposed rule.
The rulemaking committee is required to include representatives from: (1) state and
local offices that issue drivers’ licenses and/or personal identification cards; (2) state
elected officials; (3) Department of Homeland Security; and (4) interested parties.101
Changes Proposed by H.R. 418. In general, the provisions of H.R. 418
appear to effectively (though not explicitly) preempt state and local laws and
regulations regarding drivers’ licenses and personal identification cards in favor of
specific national standards established by statute and forthcoming corresponding
regulations.102 In addition, H.R. 418 contains a provision that specifically repeals the
recently enacted § 7212 of the Intelligence Reform and Terrorism Prevention Act of
2004, which contains the current law with respect to national standards for drivers’
licenses and personal identification cards.
Minimum Issuance Standards. Section 202(c) of H.R. 418 would establish
minimum issuance standards for federal recognition requiring that before a state
could issue a driver’s license or photo identification card, a state would have to verify
with the issuing agency, the issuance, validity and completeness of: (1) a photo
identification document or a non-photo document containing both the individual’s
full legal name and date of birth; (2) date of birth; (3) proof of a social security
number (SSN) or verification of the individual’s ineligibility for a SSN; and (4) name
and address of the individual’s principal residence. To the extent that information
verification requirements exist, they are currently a function of state law and likely
vary from state to state. This provision would appear to preempt any state
verification standards and replace them with the new federal standards as established
by this statutory language.
Evidence of Legal Status. Section 202(c)(2)(B) of H.R. 418 appears to
require states to verify an applicant’s legal status in the United States before issuing
a driver’s license or personal identification card. Currently, the categories of persons
eligible for drivers’ licenses are determined on a state-by-state basis. As indicated
above, the Intelligence Reform and Terrorist Prevention Act of 2004 specifically
prevents the Secretary of Transportation from enacting regulations that would
interfere with this authority. If enacted, this section of H.R. 418 would appear to
99 Pub. L. No. 108-458, § 7212(b)(3)(D)-(E).
100 See Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, 104 Stat. 4970 (1990)
(codified as amended at 5 U.S.C. §§ 581 et seq.).
101 See Pub. L. No. 108-458, § 7212(b)(4)(A)-(B).
102 Although H.R. 418 does not directly impose federal standards with respect to states’
issuance of drivers’ licenses and personal identification cards, states would nevertheless
appear to need to adopt such standards and modify any conflicting laws or regulations in
order for such documents to be recognized by federal agencies for official purposes.

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preempt any state law requirements and appears to require the states to verify the
legal status of the applicant.103
Temporary Drivers’ Licenses and Identification Cards. Section
202(c)(2)(C) of H.R. 418 establishes a system of temporary licenses and
identification cards that can be issued by the states to applicants who can present
evidence that they fall into one of six categories.104 Under H.R. 418, a state may only
issue a temporary driver’s license or identification card with an expiration date equal
to the period of time of the applicant’s authorized stay in the United States. If there
is an indefinite end to the period of authorized stay, the card’s expiration date shall
be one year. The temporary card shall clearly indicate that it is temporary and shall
state the expiration date. Renewals of the temporary cards would be done only upon
presentation of valid documentary evidence that the status had been extended by the
Secretary of Homeland Security. If such provisions exist under current law, they
exist as a function of state law and would be preempted should H.R. 418 get enacted.
Applications for Renewal, Duplication, or Re-issuance. Section
202(c)(3) of H.R. 418 requires, in instances of renewal, duplication, or re-issuance
of a driver’s license or identification card, that a state presume that the initial card
was issued in accordance with the law, if at the time of application, the driver’s
license or identification card has not expired or been canceled, suspended or revoked.
This presumption would be inapplicable if the state is notified by a local, state or
federal government agency that the individual seeking renewal, duplication or re-
issuance is neither a citizen of the United States nor legally present in the United
States. Like issuance standards, currently renewal, duplication and re-issuance
standards are governed by state law and may vary on a state-by-state basis. Should
H.R. 418 be enacted into law, it would appear that these state provisions would be
preempted in favor of the new federally developed standards.
Other Requirements. Pursuant to § 202(d) of H.R. 418, states are required
to adopt procedures and practices to: (1) employ technology to capture digital images
of identity source documents; (2) retain paper copies of source documents for a
minimum of seven years or images of source documents presented for a minimum
of ten years; (3) subject each applicant to a mandatory facial image capture; (4)
confirm or verify a renewing applicant’s information; (5) confirm with the Social
Security Administration a SSN presented by a person using the full Social Security
103 For more information relating to current state laws regarding the issuance of drivers’
licenses to aliens see CRS Report RL32127, Summary of State Laws on the Issuance of
Driver’s Licenses to Undocumented Aliens, by Allison M. Smith.
104 According to H.R. 418, persons would only be eligible for temporary drivers’ licenses
or identification cards if evidence is presented that they: (1) have a valid, unexpired non-
immigrant visa or non-immigrant visa status for entry into the United States; (2) have a
pending or approved application for asylum in the United States; (3) have entered into the
United States in refugee status; (4) have a pending or approved application for temporary
protected status in the United States; (5) have approved deferred action status; or (6) have
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.

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account number;105 (6) refuse issuance of a driver’s license or identification card to
a person holding a driver’s license issued by another state without confirmation that
the person is terminating or has terminated the driver’s license; (7) ensure the
physical security of locations where cards are produced and the security of document
materials and papers from which drivers’ licenses and identification cards are
produced; (8) subject all persons authorized to manufacture or produce drivers’
licenses and identification cards to appropriate security clearance requirements; (9)
establish fraudulent document recognition training programs for appropriate
employees engaged in the issuance of drivers’ licenses and identification cards; (10)
would limit the length of time a drivers’ license or personal identification card is
valid to eight years. To the extent that any of these requirements currently exist, they
do so as a function of state law. Thus, should H.R. 418 be enacted, it would appear
that the state laws would be preempted in favor of the new federal standards.
Alternative Issuance Provision. H.R. 418 also addresses the potential
situation where a state issues a driver’s license or personal identification card that
does not comply with H.R. 418’s provisions. Should that situation arise, section
202(d)(11) requires not only that the card clearly indicate that the card is not to be
accepted for official purposes by federal agencies, but also that any card not in
compliance use a “unique design or color indicator” as a means of alerting federal
agents that the card is unacceptable for official purposes. While this provision
appears to preserve a state’s ability to continue to issue drivers’ licenses and
identification cards that do not comply with the federal standards, it nevertheless also
appears to place an affirmative obligation on the state to notify federal agents of the
decision to issue non-compliant licenses and identification cards.106
Additional Powers of the Secretary. Section 202(d) of H.R. 418 appears
to provide discretionary authority to the Secretary of Homeland Security, authorizing
the prescription of “one or more design formats for driver’s licenses and
identification cards” to protect national security and to allow for visual differentiation
between categories or licenses and identification cards. In addition, H.R. 418
provides the Secretary of Homeland Security with discretionary authority to further
limit the length of validity of licenses and identifications cards for the purpose of
periodically confirming address and evidence of lawful residence in the United
States. Current law leaves both the design formats and the length of validity
determination to the discretion of the individual sovereign states. H.R. 418, if
enacted, would appear to preempt these state laws and regulations in favor of a
uniform federal standards.

Linking of Databases. Section 203 of H.R. 418 provides that for a state to
be eligible for any grant funding or other available federal assistance under this title
it must participate in the Interstate Drivers’ License Compact and provide electronic
access to its motor vehicle databases to all other participants. In addition, H.R. 418
105 In the event that a SSN is already registered to or associated with another person to which
any state has issued a driver’s license or identification card, the state shall resolve the
discrepancy and take appropriate action.
106 Such a provision will likely have an impact on the Constitutional analysis as indicated
supra in note 92.

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requires that all motor vehicle databases are to contain, at a minimum, all of the data
printed on a state driver’s license and all motor vehicle histories including moving
violations, suspensions and points on licenses. Currently, the Interstate Drivers
License Compact requires member states to report tickets received by a motorist to
the state where he received a license to drive so that the driver receives the required
points on his license. Also, when a state suspends the license of a driver who is from
out-of-state, the state where the motorist received a license to drive will also suspend
the license. The compact operates as a function of state law and has been approved
by Congress pursuant to the Interstate Compacts Clause.107 It appears that 46 states
and the District of Columbia are currently members of the compact and therefore
would remain eligible for federal grant money.108
Trafficking in Authentication Features for Use in False
Identification Documents. Section 204 of H.R. 418 amends 18 U.S.C. §
1028(a)(8), which makes it a federal crime to either actually, or with the intent to,
transport, transfer, or otherwise dispose of to another, materials or features109 used
on a document of the type intended or commonly used for identification purposes.
By replacing the phrase “false identification features” with “false or actual
authentication features,” this provision would appear to broaden the scope of the
criminal provision, making it a crime to traffic in identification features regardless
of whether the feature is false.
107 See U.S. CONST. Art. 1 § 8, cl. 10 (stating that “[n]o state shall, without the consent of
Congress, ... enter into any agreement or compact with another state, or with a foreign
power...”).
108 Georgia, Kentucky, Michigan, and Wisconsin appear to be the only four states that are
not currently members of the compact. See American Association of Motor Vehicle
Administrators, available at [http://www.aamva.org/drivers/drv_compactsDLC.asp].
109 These include, but are not limited to, holograms, watermarks, symbols, codes, images,
or sequences. See 18 U.S.C. § 1028(d)(1) (2004).

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