October 31, 2007
Michael W. Cutler
Center for Immigration Studies
I would like to thank New York State Senate Chairmen Vincent L. Leibell and Thomas W. Libous for their leadership in calling this hearing to explore the implications for Governor Spitzer’s newest approach to provide illegal aliens with driver’s licenses. I also want you to know I greatly appreciate the opportunity to provide you with my insight and perspectives that I have acquired during the course of my career at the former INS which spanned some 30 years.
A couple of weeks ago, on October 15, I was called before these committees to testify about the original proposal put forth by Governor Spitzer to issue driver’s licenses to illegal aliens that would be indistinguishable from those driver’s licenses that are issued to resident aliens and United States citizens. While I certainly won’t tell you I know what went into the governor’s newest proposal to issue driver’s licenses to illegal aliens that are distinct from those licenses that are issued to those who are lawfully present in the United States, it would certainly appear that the concerns so many people have expressed about the national security implications of his previous plan that he is now attempting to create a system that would eliminate the objections that many of us, myself included, have raised in response to his initial proposal.
The problem is that while there may be some benefit to creating the three tier system the governor has proposed, the undeniable issue is that under the newest plan illegal aliens would still be given the lawful authority to drive vehicles throughout the United States even though they are illegally present in our country. This concept flies in the face of commonsense and also, in my judgment, makes no sense when you consider that under federal law anyone who provides transportation to an illegal alien is committing a felony punishable to up to 5 years of incarceration and seizure of the vehicle used to transport such an illegal alien. I have attached a copy of the section of law that deals with this issue to this testimony.
The driver’s license represents a veritable “key to the kingdom.” When we engage in routine business matters, driver’s licenses are accepted as positive proof of identity for the bearer of such a license. When we make purchases with credit cards or personal checks, we are often required to provide our driver’s license to satisfy the person with whom we are doing business that we are who we claim we are. In the case of illegal aliens, the driver’s license provides a level of credibility that would enable such immigration law violators to conduct business as usual when they should not be conducting business at all in our country since their very presence here is in violation of law and patently illegal.
In my 30 years of experience with the former INS it was common to find that illegal aliens would spend money on counterfeit or altered identity documents in order to accomplish what Governor Spitzer’s plan would officially provide for illegal aliens; documentation that would enable such an illegal alien to blend into our society. When such an alien is a terrorist, the 9/11 Commission referred to that process as “embedding.” I refer to it as hiding in plain sight.
I would also urge you to consider that a car offers the perfect “stealth” mode of transportation. If a criminal or terrorist wants to travel without leaving a paper trail, a car is the best way to accomplish this nefarious goal especially if he does not use an “Easy Pass” and pays for his gasoline with cash. Why would anyone want to provide such opportunities to those who would do such grave harm to us?
An additional problem inherent with providing driver’s licenses to illegal aliens who provide passports to the New York State officials, without the benefit of having the federal government verifying the validity of the documents in question is that altered passports are becoming ever more sophisticated and there is also the issue of corruption by passport issuing officials at the various consulates who are prone to selling passports. It is important to have access to constantly changing information about the factors concerning the verification of the authenticity of passports. The Forensic Document Lab run by DHS is the best source of information about this critical area of concern. When I was assigned to the Unified Intelligence Division of the DEA from 1988 until 1991 I worked closely with the FDL to create a Document Link Analysis program to identity links between drug trafficking organizations that were using common sources to secure altered or counterfeit passports and other identity documents.
I would also point out that on September 22, 2004 the House Judiciary Committee conducted a hearing entitled “Legislative Proposals to Implement the Recommendations of the 9/11 Commission.”
At that hearing, Congressman Royce quoted Steven McGraw who had headed the Office of Intelligence at FBI Headquarters. Special Agent McGraw had previously stated at a Congressional hearing, ''The ability of foreign nationals to use the matricula consular to create a well-documented but fictitious identity in the United States provides an opportunity for terrorists to move freely within the United States without triggering name-based watch lists that are disseminated to local police offices. It also allows them to board planes without revealing their true identity.''
My concern is that passports may well pose the same sort of threat to our nation’s security if there is no consistent and effective way to verify the validity of foreign passports from nearly 200 different countries, not all of which I must remind you, have Americas’ best interests at the top of their list of priorities.
The argument that providing driver’s licenses to illegal aliens will somehow get them out of the “shadows” is a false argument. There is nothing to prevent an illegal alien, especially one who is involved in criminal or terrorist activities from simply adding the identity he (she) assumes under this ill-conceived program to the portfolio of other aliases he has been using. I would remind you that the 19 terrorists who attacked our nation on September 11, 2001 used a total of 364 false names and aliases in order to embed themselves and conceal their true identities and intentions.
I also believe that if the State of New York was to provide illegal aliens with driver’s license, even under the “three tier system,” that this offer would entice more illegal aliens to enter the United States and would also draw them to the State of New York. In my experience, when you have large communities of illegal aliens law enforcement faces more daunting challenges. Houses of prostitution and other such establishments spring up to cater to the large population of young unattached men who have left their families behind. Purveyors of fraudulent documents set up shop and businesses such as telephone arcades and mail drop services proliferate to serve the needs of the illegal alien population that seeks to send money back home and remain in touch with their families back home. The telephone arcades provide illegal aliens with the much desired ability to phone their families back home. These arcades also provide the drug dealers and terrorists with a form of communication that cannot be intercepted by law enforcement as do the mail drop services.
The proposal to provide illegal aliens with driver’s licenses would, in my judgment; result in a rapidly growing illegal alien population that would be attracted into our country and especially New York. Clearly New York is the clear target of choice to the terrorists who are so determined to destroy our nation. This increase in the illegal alien population would provide an increasingly huge haystack in which the deadly needles, the criminals and terrorists would be able to more easily hide in plain sight.
I would remind you of the often stated point that to prevent the next terrorist attack; we must be right 100% of the time. In order for the terrorists to succeed in carrying out an attack against our nation and the victims they would slaughter, the terrorists need to be right only one time.
This leads me to ask the obvious question, “Why?”
Why should the state of New York provide illegal aliens with the key to the kingdom that threatens our safety and encourages still more illegal immigration at a time when the clear majority of American citizens and the residents of the state of New York are clear in their desire to have the government on all levels, provide a safe and secure environment for themselves and their families?
Clearly the risks associated with the scheme to provide illegal aliens with official identity documents that the driver’s license represents, engenders a number of significant risks to public safety and national security. Why then should this be done?
Clearly there is no sound reason for illegal aliens to be afforded the privilege of driving a car in our country when they have no right to be here.
I look forward to your questions.
1907 Title 8, U.S.C. § 1324(a) Offenses
Title 8, U.S.C. § 1324(a) defines several distinct offenses related to aliens. Subsection 1324(a)(1)(i)-(v) prohibits alien smuggling, domestic transportation of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging or inducing unauthorized aliens to enter the United States, and engaging in a conspiracy or aiding and abetting any of the preceding acts. Subsection 1324(a)(2) prohibits bringing or attempting to bring unauthorized aliens to the United States in any manner whatsoever, even at a designated port of entry. Subsection 1324(a)(3).
Alien Smuggling -- Subsection 1324(a)(1)(A)(i) makes it an offense for any person who -- knowing that a person is an alien, to bring to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien.
Domestic Transporting -- Subsection 1324(a)(1)(A)(ii) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law.
Harboring -- Subsection 1324(a)(1)(A)(iii) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.
Encouraging/Inducing -- Subsection 1324(a)(1)(A)(iv) makes it an offense for any person who -- encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
Conspiracy/Aiding or Abetting -- Subsection 1324(a)(1)(A)(v) expressly makes it an offense to engage in a conspiracy to commit or aid or abet the commission of the foregoing offenses.
Bringing Aliens to the United States -- Subsection 1324(a)(2) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has not received prior authorization to come to, enter, or reside in the United States, to bring to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted on September 30, 1996, added a new 8 U.S.C. § 1324(a)(3)(A) which makes it an offense for any person, during any 12-month period, to knowingly hire at least 10 individuals with actual knowledge that these individuals are unauthorized aliens. See this Manual at 1908 (unlawful employment of aliens).
Unit of Prosecution -- With regard to offenses defined in subsections 1324(a)(1)(A)(i)-(v), (alien smuggling, domestic transporting, harboring, encouraging/inducing, or conspiracy/aiding or abetting) each alien with respect to whom a violation occurs constitutes a unit of prosecution. Prior to enactment of the IIRIRA, the unit of prosecution for violations of 8 U.S.C. § 1324(a)(2) was each transaction, regardless of the number of aliens involved. However, the unit of prosecution is now based on each alien in respect to whom a violation occurs.
Knowledge -- Prosecutions for alien smuggling, 8 U.S.C. § 1324(a)(1)(A)(i) require proof that defendant knew that the person brought to the United States was an alien. With regard to the other violations in 8 U.S.C. § 1324(a), proof of knowledge or reckless disregard of alienage is sufficient.
Penalties -- The basic statutory maximum penalty for violating 8 U.S.C. § 1324(a)(1)(i) and (v)(I) (alien smuggling and conspiracy) is a fine under title 18, imprisonment for not more than 10 years, or both. With regard to violations of 8 U.S.C. § 1324(a)(1)(ii)-(iv) and (v)(ii), domestic transportation, harboring, encouraging/inducing, or aiding/abetting, the basic statutory maximum term of imprisonment is 5 years, unless the offense was committed for commercial advantage or private financial gain, in which case the maximum term of imprisonment is 10 years. In addition, significant enhanced penalties are provided for in violations of 8 U.S.C. § 1324(a)(1) involving serious bodily injury or placing life in jeopardy. Moreover, if the violation results in the death of any person, the defendant may be punished by death or by imprisonment for any term of years. The basic penalty for a violation of subsection 1324(a)(2) is a fine under title 18, imprisonment for not more than one year, or both, 8 U.S.C. § 1324(a)(2)(A). Enhanced penalties are provided for violations involving bringing in criminal aliens, 8 U.S.C. § 1324(a)(2)(B)(i), offenses done for commercial advantage or private financial gain, 8 U.S.C. § 1324(a)(2)(B)(ii), and violations where the alien is not presented to an immigration officer immediately upon arrival, 8 U.S.C. § 1324(a)(2)(B)(iii). A mandatory minimum three year term of imprisonment applies to first or second violations of § 1324(a)(2)(B)(i) or (B)(ii). Further enhanced punishment is provided for third or subsequent offenses.
COMMENT: Further discussion of offenses defined in 8 U.S.C. § 1324(a) is set forth in Chapter 3 of Immigration Law, published as part of the Office of Legal Education's Litigation Series, and as part of the USABook computer library.