Must Carry Identity Documentation

'Demanding Identity Papers' by Jonathan Weinberg in (2015) 5(1) Washburn Law Journal 197 comments

Language in the [US] Immigration and Nationality Act appears to make it a crime if a non-citizen, present in this country, fails to carry government-issued immigration documents on his person at all times. The resulting body of law, though, is deeply incoherent; it assumes an administrative process that has not existed for many decades. Analysis of the provisions’ history and context supports the conclusion that they should not be read to impose obligations on persons who have entered the U.S. without authorization. 

Weinberg argues that

Federal statutory law includes a set of provisions that appear to mandate the registration and fingerprinting of every person, age fourteen or above, who is present in this country but is not a U.S. citizen. Those same provisions direct that noncitizens, while in the United States, “at all times carry with [them] and have in [their] personal possession” the immigration documents issued to them as part of that process.  That body of law, as administered today, is convoluted, confusing, and significantly incoherent. There’s substantial uncertainty regarding to whom it applies and under what circumstances. In this short Article, I will set out the statute’s requirements and explain its modern administration. I will then explain the history of the statutory provisions, so as better to explain how we got where we are now. Finally, I’ll address key questions as to the scope of the law today.

II The Puzzle of Alien Registration

Our starting points are sections 262(a) and 266(a) of the Immigration and Nationality Act (“INA”), which require that “ every alien now or hereafter in the United States ... apply for registration and to be fingerprinted.” Section 264(d) of the Act directs the United States, upon such registration, to issue the alien a “certificate of alien registration or an alien registration receipt card.” And section 264(e) directs “ every alien, eighteen years of age and over, [to] at all times carry with him and have in his personal possession an y certificate of alien registration or alien registration receipt card issued to him.”

These provisions seem straightforward enough; they inspired the state of Arizona, just a few years ago, to enact a law it called Senate Bill 1070, the Support Our Law Enforcement and Safe Neighborhoods Act. Section 3 of that statute created a crime of “failure to ... carry an alien registration document.” Arizona read the INA to say that it was a federal crime for a noncitizen, here in this country without authorization, to walk its streets unaccompanied by an “alien registration document” issued by the U.S. government, and it reasoned that it could make the same conduct a state crime. The U.S. Supreme Court, while striking down that law as invading federal authority, did not challenge Arizona’s understanding of the INA.

Yet sections 264(e), 262, and 266 are not so simple, and there is good reason not to take them at face value. For starters, their language does not match up with modern immigration procedures or documentation: the registration process Congress had in mind when it enacted those sections has not existed for many decades. If you look in the Code of Federal Regulations today to find out how a noncitizen can register in conformance with the law, you’ll find eleven different documents listed as “prescribed registration forms” — apparently, the filing of any of these eleven documents, during a wide range of possible interactions with the immigration bureaucracy, counts as “apply[ing] for registration” from the government’s perspective.

But the list is an awkward one at best. The first-listed of its forms is an inspection record issued under a special statute providing for the s tatus legalization of refugees from the 1956 Hungarian uprising.  That is great, I guess, for elderly Hungarian refugees, but — by contrast — the more important and commonly filed I-589 asylum application is not on the list as a “ registration form [] .”

The second item on the list is the I-94 form historically filled out by foreign visitors to the U.S. That would work well enough, except that the Department of Homeland Security (“DHS”) no longer directs most visitors to fill out that form today. Instead, it collects the relevant information from their airline - supplied electronic travel records.   Elsewhere on the list are documents that might more plausibly work as registration forms, such as the I-485 green card application. But not every noncitizen in the United States has had the opportunity to file one of those forms.

Crucially, the list includes no “registration forms” that could be filed by a person in the United States without authorization — and that includes people who have been granted relief under the Deferred Action for Childhood Arrivals (“DACA”) program, people with Temporary Protected Status, or others with deferred action. If section 264(e) is read to criminalize those persons’ failure to file a form on the list, it would contravene long standing government policy, some of it explicitly set out in the statutory law.  It would effectively criminalize unlawful presence in the United States, something Congress has consistently declined to do.  Moreover, I will point out later in this Article, it would violate the Fifth Amendment privilege against self-incrimination. 

Next, the federal government does not issue any single document called, or easily understood as, a “certificate of alien registration or an alien registration receipt card.”  If we return to 8 C.F.R. § 264.1, we see instead a list of eleven or twelve documents that are said to constitute “evidence of registration.” That list works a little better. It includes the I-551 green card, the I-776 employment authorization document, and “a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport.”  In general, people legally admitted to the United States will have one of these.

Again, though, people who were not legally admitted will not have one — and that includes people with Temporary Protected Status or DACA relief, unless they have work authorization. Presenting oneself for deportation might generate an “evidence of registration” document, because the I-862 Notice to Appear (typically, the first step in the removal process) is on the list. But the mere fact that DHS has been made aware of an illegal entrant does not mean that it will issue an I-862.

In sum, many noncitizens resident in the United States, often with the acquiescence of the U.S. government, have no “ evidence of registration ”document or anything else resembling an “alien registration receipt card,” and no way to get one. If we focus on the text of section 264(e)’s carry requirement (that is, the rule that a noncitizen must “at all times carry with him and have in his personal possession any [registration document] issued to him”), it is pretty clear that a person can not be criminally charged for failing to “carry with him and have in his personal possession” a document he never got and could not get.

But the U.S. government seems not to see it the same way. From time to time, federal prosecutors charge illegal entrants with violations of both sections 262 (the registration requirement) and 264(e) (the carry requirement); defendants do not contest those charges, and the cases end in guilty pleas.  In other cases not involving section 262 or 264(e) charges, courts have accepted the argume nt that section 264(e) provided probable cause for the arrests of suspected illegal entrants.

Outside of the courtroom, U.S. Customs and Border Protection (“CBP”) treats sections 262 and 264(e) as imposing an obligation on all noncitizens, authorized or unauthorized, to carry immigration documentation at all times. 8 U.S.C. § 1357 gives CBP agents the right, on or off the border, to “interrogate any . . . . person believed to be an alien as to his right to be . . . in the United States.” It gives CBP the right, without a warrant, to stop and search any vehicle within “a reasonable distance from any external boundary of the United States.” CBP has defined that “reasonable distance” as 100 miles, and is said to operate 170 checkpoints within that 100-mile-wide zone (which includes nine of this country’s ten largest cities, and two-thirds of our population). And the law gives CBP the right to conduct warrantless search of any property, other than dwellings, within twenty-five miles of the border.

CBP routinely detains people encountered within 100 miles of a border whom an agent believes to be foreign-born if they do not have on their persons what CBP describes as “required identification papers.” Its paperwork commonly notes § 264(e) as justification for those detentions.

CBP agents have told foreign students that the law requires them to carry the I-20 forms provided to them by their schools to support their visa applications. They have emphasized to foreign nationals in the United States that the registration law requires them to carry their passports or visas even on a “walk to the grocery store.” More generally, CBP believes that its agents have a duty to “verify the immigration status of the individuals they encounter.” Its view is that agents are empowered to arrest a person, and detain her at the station, whenever that person cannot produce documents establishing her legal status, and the agent cannot verify her status through a radio call requesting a database check. Because database checks are frequently inconclusive, CBP agents frequently detain persons with legal status but without papers on their persons demonstrating that status.

According to a study of CBP enforcement activity in the Buffalo region, the vast majority of the agency’s enforcement targets in that region are persons of South Asian, East Asian, African, and Caribbean backgrounds.  Those persons are subject to what amounts to a blanket requirement that, if they are within 100 miles of the border, they must carry papers or risk detention. All of this is based on a highly problematic reading of the relevant statute, and imposes on noncitizens a documentary surveillance regime that could not constitutionally be imposed on Americans.

Weinberg's 'Proving Identity' (Wayne State University Law School Research Paper No. 2016-09) comments 

United States law, over the past two hundred years or so, has subjected people whose race rendered them noncitizens or of dubious citizenship to a variety of rules requiring that they carry identification documents at all times. Such laws fill a gap in the policing authority of the state, by connecting the individual’s physical body with the information the government has on file about him; they also entail humiliation and some degree of subordination. Accordingly, it’s not surprising that we’ve almost always imposed such requirements on people outside our circle of citizenship -- African-Americans in the antebellum South, Chinese immigrants, legally resident aliens. Today, though, there’s reason to think that we’re moving closer to a universal identity-papers regime.

We’ve all been displaying identification documents a lot lately. You have to show ID in order to vote (though some argue that such rules unconstitutionally suppress minority voting power). Federal law requires that you show ID in order to accept employment (and there are some in Congress who would go further, requiring anyone in the U.S. to display a new national ID card before taking any job). More and more, we’re getting used to demands that we verify our identity at different moments of our daily lives.

And the nature of the docume ts that we need to show is changing. Visitors to U.S. military bases need to identify themselves to be admitted; historically, a state driver’s license has sufficed. If you live in Chicago, though, and display your Illinois driver’s license at the gate of the naval training center there, you’ll be turned away. The U.S. government recently ruled that it won’t accept the Illinois driver’s license for this purpose because, it says, Illinois driver’s licenses don’t satisfy federal standards.  The federal government has announced that in the future it will disqualify residents of certain states from using their driver’s licenses to pass through airport security.  So it’s not merely that the law requires us at various moments of our lives to show identification documents, but the federal government increasingly is seeking to dictate how those documents are issued.

If you’re not a U.S. citizen, but you are physically present in this country, federal law is stark: it requires you to carry, at all times, in yo ur personal possession, federally-issued documents establishing your identity and your immigration status.  This isn’t at all new. Looking back through U.S. history, people whose race rendered them noncitizens or of dubious citizenship have been subject to a variety of similar rules that they carry identification documents: free blacks in the antebellum period,  and Chinese immigrants beginning in 1892.  The current law requiring noncitizens to carry ID can be traced to a 1952 effort to save the country from Communism. White U.S. citizens as well sometimes have been subject to legal sanction if found without ID, including men of draft age during WWI and (nominally) from 1940 to 1975, and the disreputable poor in some jurisdictions during the 1970s and early 80s.

Current pushes for new ID requirements, like the older ones, tend to be attached to immigration and national security initiatives, and to be heavily rooted in race. Arizona’s 2010 Support Our Law Enforcement and Safe Neighborhoods Act  was exemplary. Enacted in an environment of widespread police racial profiling and unlawful stops, detentions, and arrests of Latinos,  it made it a state crime, enforceable by state police, for any non-U.S. citizen to fail to carry federal immigration documents.  Current U.S. Border Patrol enforcement can be seen through the same lens. Agents understand themselves to have the authority to detain, and demand papers from, anyone they encounter within 100 miles of a border who appears to be foreign-born; unsurprisingly, their enforcement targets skew brown.

How should we understand these mandates? Historically, we’ve most commonly used identity-papers requirements to control those outside our legal circle of citizenship -- African-Americans in the antebellum South, Chinese immigrants, legally resident aliens. All of these groups have been perceived as including members who were subversive, encroaching or illegal, but who would be too hard to identify and classify without the aid of forced identification. In the military draft context, we sought to use a less problematic version of the same technique to identify citizen “slackers” – to avoid a feared splintering of citizenship by means of (perceived) shirking from crucial national obligation and sacrifice. We’ve thus used identity - document controls to maintain hold over noncitizens, and to cleave to the group what the majority perceived to be unreliable citizens.

But there’s more going on. ID requirements are threatening, on multiple fronts, to those forced to identify themselves. From one perspective, the foundational aspect of identity cards is that they connect one’s physical body with a government database. Without a requirement that persons carry identity papers, a law enforcement officer encountering an anonymous citizen has no access to the database-stored information that would provide basis for arrest. With such a requirement, that information is visible to the officer, and it puts the holder’s body at risk.

From another perspective, the law enforcement’s ability to demand identity cards relates to issues of dominance and hierarchy. A free people, Americans tend to believe, can move about without having their bona fides questioned, without having a police officer able to demonstrate his authority and their subordination by forcing them to display identification. That understanding, indeed, is reflected in Supreme Court case law.

Either way, it’s unsurprising that we’ve been much more willing, throughout our history, to impose identification requirements on minorities – on the Other, on those outside our circle of citizenship – than on ourselves. A few years ago, the Senate drafters of a comprehensive immigration reform bill urged that every person who sought to work in the U.S. – citizen and noncitizen alike – should have to get a new machine-readable identification card bearing his biometric information and establishing his legal authorization to work.  But while the larger bill in which that proposal was embedded passed the Senate, the ID-card proposal did not: it was dropped.  Similarly, aspects of the 2005 REAL ID law seen as tending to create a national ID card have seen continuing resistence and pushback in some states and local communities. 

And yet it’s still fair to say that we‘re seeing a drift towards greater acceptance of ID requirements for all; indeed, those challenged REAL ID provisions are still on track to be implemented. How should we understand that development? In this paper, I’ll tell the story of identity-papers rules in the U.S., and draw some conclusions.

Part I of the paper will beg in by examining the pre-Civil War rule s imposed on many free blacks requiring that they carry documentation; part II will consider the more encompassing identity-papers requirement applied to Chinese migrants starting in 1892. Part I II will shift to World War One, and a regulation providing that all men of draft age carry draft registration certificates at all times. Part IV will look to the requirement, dating from the McCarthy era and still in force, that noncitizens register with the U.S. government and carry their registration cards at all times. Part V will consider the Vietnam-era draft card controversy, and a set of state and local laws in force roughly contemporaneously requiring vagrants and undesirables to provide identification on demand. Part VI, finally, will consider REAL ID and identity demands in the modern context.