One of the most common sources of anxiety for undocumented and out of status people is whether they can travel within the United States, particularly by air. By now, many people are hopefully more aware that international flights outside the US can seriously jeopardize their immigration status and incur devastating legal consequences such as the unlawful presence bar, which is triggered by a departure. What has not been so clear is whether someone with problematic immigration status can take a domestic flight inside the US without risking potential immigration problems. Despite anecdotal evidence, the conservative answer would be no, and many people have learned this lesson the hard way. And now, according to recent news reports that started coming out late last year, it appears that new measures to implement an already existing law may further complicate an “illegal” person’s ability to fly outside his/her state of residence, even though immigration enforcement at the airports may not necessarily have been its intended result.
At issue is the REAL ID Act, which was passed by Congress in 2005 to strengthen minimum security standards for the issuance of identity documents, such as driver licenses. The Act sets forth guidelines under which certain documentation is to be issued as well as accepted in order to access federal facilities, as well as boarding federally regulated aircraft. In 2013, the Department of Homeland Security (“DHS”) promulgated a phased enforcement plan for the REAL ID Act’s implementation. Now, in the wake of the terrorist attacks in Paris and California, it appears that the government is under more pressure to ensure that the Act is being enforced and strictly followed. If implemented nationwide, the enforcement will primarily impact the 30% of states that still issue licenses that have been determined by DHS to not conform to the REAL ID Act, ie., many of which do not inquire into immigration status. This, in turn, may hamper or impede an illegal alien’s ability to board an airplane because driver licenses are a typical form of ID necessary to fly. Individuals who have licenses from states that are not in compliance with the Act may be refused entry onto an aircraft unless another type of acceptable government identification document (https://www.tsa.gov/travel/security-screening/identification) is furnished. If no such ID is given, the alien will not be allowed to fly. Although this is technically more of a Traffic Safety Administration (“TSA”) issue, the problem is that any delay or issues at the airport could potentially expose an already vulnerable person to further inquiry by DHS.
As of now, DHS is still in the process of implementation and will give 120 days notice before any changes are made that will affect travel. Furthermore, although New York and New Jersey have been deemed non-compliant with the REAL ID Act, these states have been granted authorized extensions, therefore allowing federal agencies to accept NY/NJ licenses until October of 2016. However, given the direction things are turning, people with questionable immigration status may want to reconsider flying domestically, especially if not for significant reasons and not without consulting an immigration attorney first.
Please remember that the foregoing is not legal advice nor intended to create an attorney-client relationship. For specific information or legal advice, please consult with an attorney.