Consular Identification Cards: Domestic and Foreign Policy Implications, the Mexican Case, and Related Legislation
Released: 2005-05-26T00:00:00

Introduction

It is fairly common practice for the embassies and consulates of foreign states, including theUnited States, to encourage their citizens abroad to register with the consulates so that they canreceive standard consular services, be notified if necessary, and be located upon inquiry by relativesand authorities. Consular registration has been widely recognized and protected under internationallaw for many years, most recently by the Vienna Convention on Consular Relations of 1963.

The current debate about consular identification cards in the United States has centeredaround the matrÃ­cula consular, the consular card issued by the Mexican government to its citizensin the United States when they register with a consulate. As a result, this report focuses mainly onthe Mexican identification card, although Guatemala, Ecuador, and Brazil also issue such cards, andother nations, including El Salvador, Honduras, Peru, and Poland, are reportedly considering similarprograms. Legislation introduced in the 108th and 109th Congresses, discussed below, wouldgenerally apply to consular identification cards from any country.

Evolution of the MatrÃ­cula Consular

According to Mexican officials, Mexico has been issuing consular identification cards since1871, but demand for the cards has grown dramatically in recent years. The number of cards issuedhas increased significantly under the administration of Mexican President Vicente Fox (2000-2006),who has emphasized service to citizens abroad, and since the terrorist attacks of September 2001,when identity documents became increasingly necessary in the United States.

Following the terrorist attacks in the United States, Mexico redesigned and added newfeatures to the matrÃ­cula consular to make it a more useful and secure document. The new verisonof the card, which the Mexican government calls the "high security consular registration" (matrÃ­culaconsular de alta seguridad, MCAS, in Spanish), first became available in the United States in March2002. (1) Each of the newcards has the photograph, name, signature, date and place of birth, and U.S. address of the bearer,as well as a serial number, date of issue and expiration, and the name of the issuing consulate. Thecards have a number of security features that are designed to make the cards tamper-proof andnon-duplicable. (2)

According to Mexican officials, to obtain a matrÃ­cula consular card, an applicant must appearin person and must present the following documentation: (1) a birth certificate or other documentdemonstrating Mexican citizenship; (2) a document with a picture demonstrating identity, such asa voter identification or a driver's license; and (3) proof of a local address in the United States, suchas a utility bill. The cards are issued for a five-year period upon payment of a $26 fee. In responseto past criticisms, (3) a July2004 document provided by the Mexican Embassy claims that Mexico has developed a nationaldatabase of passport and consular data that can be used to prevent the issuance of duplicate andfraudulent cards. It also has the ability to check the persons identity against the large Mexican voterregistration database and against a "stop list" of approximately 13,000 records of non-acceptablepersons, including fugitives or people who have attempted to use fake documents in the past. According to Mexican officials, 2.2 million of the high security identification cards were issued fromMarch 6, 2002, to July 18, 2004. They estimate that almost 4 million Mexicans in the United Stateshave consular ID cards of the older and newer versions. They note that by March of 2007 all of theold cards will have expired and will have been replaced by the new high-security cards.

Acceptance of the MatrÃ­cula Consular

In recent years, Mexican consulates in the United States and other interested parties havesought, with some success, to gain acceptance of the matrÃ­cula consular as identification for a varietyof purposes. According to the July 2004 white paper provided by the Mexican Embassy, thematrÃ­cula consular is accepted as valid identification in 377 cities, 163 counties, and 33 states, aswell as 178 financial institutions and 1,180 police departments in the United States. Additionally,12 states recognize the card as one of the acceptable proofs of identity to obtain a driver's license. It is also accepted by numerous telephone and utility companies, hospitals, and video stores, amongother establishments.

Some entities, however, have decided against accepting the cards. Citing security concerns,the New York City Police Department has declined to recognize the matrÃ­cula consular. The NewYork State Department of Motor Vehicles has also refused requests to add the matrÃ­cula consularto its list of acceptable identity documents for obtaining a driver's license. In Colorado, a recentlyenacted law states that public entities can accept only identification documents that are issued by astate or federal jurisdiction or that are recognized by the U.S. government.

At the federal level, the Treasury Department, along with other agencies, issued finalregulations on May 9, 2003, setting forth the identifying information that banks had to obtain, at aminimum, from a customer prior to opening an account. (4) Section 326 of the USA PATRIOT ACT ( P.L. 107-56 ) directedthe Treasury Department to prescribe such regulations. Under the May 2003 regulations, therequired customer information includes an identification number. For non-U.S. persons, thisidentification number can be one or more of four specified numbers, one being the "number andcountry of issuance of [a] government-issued document evidencing nationality or residence andbearing a photograph or similar safeguard." (5) The rule became effective on June 9, 2003, and banks had to bein compliance by October 1, 2003. In an October 2002 report to Congress also mandated by Section326 of the Patriot Act, which referenced the regulations in proposed form, the Treasury Departmentspecifically addressed the matrÃ­cula consular. A footnote in the report stated: "Thus, the proposedregulations do not discourage bank acceptance of the 'matricula consular' identity card that is beingissued by the Mexican government to immigrants." (6)

Following publication of the final rule in May 2003, the Treasury Department re-opened thequestion of accepting certain forms of foreign government-issued identification to verify customeridentity. On July 1, 2003, it published a notice of inquiry in the Federal Register requestingadditional input on this issue and recordkeeping provisions. (7) In the notice, it posed a seriesof questions about whether the regulations should preclude financial institutions from acceptingcertain forms of foreign government-issued identification. The notice further indicated that after thecomments had been considered a determination would be made about whether to proposeamendments to the May 2003 regulations. On September 18, 2003, the Treasury Departmentannounced that after reviewing over 34,000 comments, it had decided not to recommend any changesto the rules. (8)

Further developments relating to the acceptance or non-acceptance of consular identificationcards are expected. A federal interagency working group chaired by the Department of HomelandSecurity, with representatives from various executive branch agencies, has been developingrecommendations for a federal policy on these cards, and the 9/11 Commission recommended thatthe United States set standards for the issuance of birth certificates and sources of identification, suchas driver's licenses. The Intelligence Reform and Terrorism Prevention Act of 2004, approved inDecember 2004 in response to the 9/11 Commission recommendations, requires the Secretary ofHomeland Security to propose, subject to congressional approval, minimum standards foridentification documents to be used by airline passengers (and, after a report, for entry to designatedfederal facilities) and establishes strict default standards in the event of congressional disapproval. On February 10, 2005, the House passed H.R. 418 , the REAL ID Act of 2005(Sensenbrenner), that would establish identity card standards for the issuance of drivers' licenses thatwould seem to preclude the use of consular ID cards for those purposes. This measure was attachedby the House to the Emergency Supplemental Appropriations for FY2005 ( H.R. 1268 )as Division B on March 16, 2005. Following conference, H.R. 1268 was passed with thespecified provisions by the House and Senate in early May 2005, and it was signed into law ( P.L.109-13 ) on May 11, 2005.

Domestic Policy Implications

The acceptance of the matrÃ­cula consular for various purposes by the Treasury Departmentand by local governments and other public and private entities in the United States has raised anumber of questions for U.S. policy. The possible domestic policy implications -- as well as foreignpolicy implications -- were initially discussed at two June 2003 oversight hearings on consularidentification cards held by the House Judiciary Committee's Subcommittee on Immigration, BorderSecurity, and Claims. (9) Subsequently, these implications have been discussed in the context of the Treasury Department July2003 reopening of the question of accepting certain forms of foreign government-issuedidentification to verify customer identity, and in the context of the consideration of the variouslegislative proposals mentioned below, especially the REAL ID Act of 2005. Domestic policyquestions about acceptance of the matrÃ­cula consular fall mainly in the overlapping areas ofimmigration, public safety and law enforcement, and homeland security.

Immigration

In important respects, the debate over the matrÃ­cula consular is a debate about how to addressthe issue of unauthorized immigration to the United States. Those who support domestic acceptanceof the matrÃ­cula consular emphasize that the card is issued solely for identification purposes and doesnot confer any type of legal immigration status on the bearer. They maintain that acceptance of thecard is necessary in a post-September 11, 2001 America in which photo identification is required toconduct daily business and that such acceptance is beneficial not only for the holders but for thebanks and other institutions as well. Some supporters address the unauthorized immigration issuemore directly, arguing that it is time to acknowledge that there are millions of unauthorized aliensliving and working in the United States and to take steps to more fully integrate them into society. They argue that it is better for these individuals to have an identity and to participate openly in thefinancial institutions where their transactions can be monitored, rather than to engage in surreptitiousactions that encourages the acquisition of fraudulent documents.

Opponents of domestic acceptance of the matrÃ­cula consular argue that the card is neededonly by aliens who are illegally present in the United States and do not possess other acceptableidentification documents. They maintain that the matrÃ­cula consular helps unauthorized Mexicanslive and conduct business in the United States by, for example, enabling them to open bank accounts. In so aiding illegal aliens, opponents charge, the card effectively confers quasi-legal status on themin subversion of U.S. immigration law. They view efforts to gain widespread acceptance of the cardas part of a larger strategy to legalize the status of unauthorized Mexicans in the United States. Morebroadly, opponents argue that acceptance of the matrÃ­cula consular has negative implications for thecountry's ability to set future immigration policy.

Public Safety and Law Enforcement

Public safety and law enforcement figure prominently in the debate surrounding domesticacceptance of the matrÃ­cula consular. Supporters argue that the card is a secure, fraud-resistantdocument that reliably identifies the bearer. Mexican officials maintain that the documents presentedto obtain the card are properly authenticated. With respect to verifying birth certificates, the primarydocument used to obtain a matrÃ­cula consular, Mexican officials assert that consular staff workclosely with document registries in Mexico when they have any doubts about the legitimacy of abirth certificate. These officials also argue that Mexico has developed a comprehensive database thatwould prevent the issuance of duplicate and fraudulent cards, and that it has the ability to check theapplicant's identity against the large Mexican voter registration database and against a "stop list" ofnon-acceptable persons. They note that the matrÃ­cula consular cards are as secure as, if not moresecure than, many U.S. documents, including birth certificates and social security cards and somestate's driver's licenses.

Supporters take the position that acceptance of the matrÃ­cula consular by law enforcementagencies improves public safety by, for example, helping police officers identify witnesses, victims,and suspects. If individuals do not possess acceptable identification, they explain, law enforcementagencies must expend time and resources to try to identify them. Supporters also maintain that alienswith identification are more likely to report crimes and cooperate in police investigations.

Supporters further argue that acceptance of the matrÃ­cula consular by entities other than lawenforcement agencies has public safety benefits. As an example, they cite acceptance of the card byfinancial institutions to open bank accounts and participate in various economic activities, usuallyat a reduced cost . They maintain that individuals who are able to deposit their money in banks donot have to carry around large amounts of cash or keep large sums in their homes and, thus, are lesslikely to become crime victims.

Opponents of domestic acceptance of the matrÃ­cula consular challenge the assertion that thecard is a secure document. They argue that despite its fraud-resistant features, the card is not securebecause the underlying documentation used to obtain it is not properly authenticated. They expressparticular concern about the Mexican birth certificate, which, they say, is easily forged. Opponentsof domestic acceptance of the matrÃ­cula consular assert that the authentication process relies onvisual inspection of documents by Mexican consular personnel, which, they claim, is inadequate. They also argue that there are inadequate mechanisms to prevent the issuance of multiple cards tothe same person. They cite cases in which a single individual has been found with multiple cards,each containing the individual's photograph but a different name.

Opponents argue that acceptance of the matrÃ­cula consular by law enforcement agenciesthreatens public safety. They maintain that in cases of minor infractions, police departments thatrecognize the card are not conducting background checks or taking fingerprints of card holders. Given this practice, opponents argue, the card helps conceal past criminal activity. They furtherspeculate that the acceptance of the matrÃ­cula consular by the police will encourage drug traffickersand other criminals to obtain the cards.

The potential use of the matrÃ­cula consular to establish false identities is of great concern toopponents. They argue that cards issued to individuals under false names can be, and have been,used to obtain driver's licenses and other documents in those names to create multiple identities. According to opponents, individuals can use these false identities to facilitate criminal acts, such asmoney laundering and alien smuggling, and to avoid detection by authorities.

Homeland Security

Supporters of domestic acceptance of the matrÃ­cula consular argue that the card improveshomeland security by enabling the authorities to easily and accurately identify Mexican nationals inthe United States. They maintain that individuals who are isolated and marginalized pose a greaterpotential security threat than those who are known. They emphasize that Mexico is not aterrorist-supporting country and that Mexicans come to the United States to work, not to committerrorist acts.

Opponents argue that domestic acceptance of the card threatens homeland security. According to June 2003 congressional testimony by the Federal Bureau of Investigation (FBI), "theability 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 in the United Stateswithout triggering name-based watch lists." The FBI also expressed concern about the possible useof false identities to transfer funds to support terrorist acts. (10) In arguing againstacceptance of the matrÃ­cula consular on security grounds, opponents state that the lax issuanceprocedures have enabled non-Mexicans, including at least one known individual of Middle Easterndescent, to obtain valid cards. (11) They further contend that accepting the Mexican consular cardsets a dangerous precedent, since other less friendly countries may decide to issue consularidentification cards to their nationals in the United States.

Foreign Policy Implications

The foreign policy implications of the matrÃ­cula consular may be viewed under three mainheadings: the U.S.-Mexico bilateral relationship, reciprocity of treatment of citizens abroad, andconsular notification in law enforcement situations.

Bilateral Relations

During the 2000 Mexican presidential campaign, the major candidates discovered that thestatus of Mexican migrants in the United States was one of the top concerns among the Mexicanpeople. A large portion of the population has a relative in the United States, and there is widespreadconcern about the plight of migrants who die enroute, or are exploited in some way in the UnitedStates.

As a result, when President Fox of the conservative National Action Party (PAN) was electedin July 2000 and inaugurated in December 2000, he began pressing proposals with the United Statesfor legalizing undocumented Mexican workers in the United States through amnesty or guest workerarrangements, while offering improved relations in other areas, including trade, drug control, andforeign policy cooperation. At two major presidential meetings in 2001, the two Presidents launchedcabinet-level negotiations to address migration and labor issues between the countries. However,following the September 2001 terrorist attacks, the migration talks stalled and no legislation wasenacted, despite several legislative initiatives and an immigration proposal by President Bush inJanuary 2004.

During the 2004 presidential campaign, both major candidates called for immigration reform,and since President Bush's re-election in November 2004 and his re-inauguration in January 2005,he has asserted that immigration reform will be a priority in his second term. He called again forimmigration reform that would provide temporary legal status for foreign guest workers in his Stateof the Union address on February 2, 2005. (12)

Given the lack of progress so far on the bilateral migration talks, some observers have arguedthat the Mexican government's campaign to issue consular identification cards was a way to providelimited benefits to the migrant population in the United States, giving them access to bankingservices, permitting them to transfer money to Mexico at cheaper rates through establishedinstitutions, and permitting them to have more normal access to regular activities in the UnitedStates. Supporters of the matrÃ­cula consular argue that by improving the lives of Mexican citizensthe card has improved the relationship between the United States and Mexico, despite falling shortof the desired migration agreement. They cite improved bilateral cooperation in many areas, mostnotably in enhanced Mexican efforts to control drug trafficking activities, to cooperate on bordercontrol plans, and to deploy soldiers to secure access points to the United States during the war inIraq, although Mexico favored a more multilateral approach to that problem. These supporters arguethat restricting the issuance and acceptance of the identity cards might have an adverse effect on thebilateral relationship between the countries, and Mexican officials did criticize the passage of theREAL ID Act of 2005 as part of the FY2005 Emergency Supplemental in May 2005.

Opponents of the matrÃ­cula consular may acknowledge that the card has improved bilateralrelations to some extent, but they argue that regulations covering issuance and acceptance arenecessary to achieve the more important U.S. goals of control of immigration policy and defenseagainst a possible threat of terrorism. They argue that Mexican officials have been inappropriatelyinvolved in the domestic affairs of the United States when they have promoted acceptance of thecards.

Reciprocal Treatment

As indicated above, it is traditional practice for consulates abroad, including U.S. consulates,to register and maintain some record of their nationals abroad for the purpose of notifying andprotecting them. This practice is recognized and protected under international law through theVienna Convention on Consular Relations of 1963, which provides that states will accord this rightto each other on a reciprocal basis. (13) In addition, it is traditional practice for many institutions in onecountry to accept the official documents of another country for a variety of transactions, such asaccepting a U.S. driver's license for driving automobiles in Mexico.

According to Roberta Jacobson, the Acting Deputy Assistant Secretary of State for WesternHemisphere Affairs, in testimony at a June 2003 House Immigration Subcommittee hearing onconsular identification cards, the Department of State "issues documentation other than a passportfor U.S. citizens abroad and at times occasionally issues similar identity cards or travel documents." "Should a foreign country decide to limit acceptance of such documentation or other traditionaldocumentation such as state-issued identifications or driver's licenses," she counseled, "the actionsof American citizens abroad could be seriously restricted." (14)

Proponents of the matrÃ­cula consular argue that the United States should accept the cards,so that the U.S. government will receive reciprocal treatment in the issuance of identification cardsabroad, and Mexico and any other foreign state will recognize the documents of U.S. citizens for avariety of activities. Critics of the matrÃ­cula consular rarely comment on this aspect, but may arguethat U.S. documents would continue to be recognized by foreign states, even if U.S. acceptance ofthe matrÃ­cula consular were to be restricted, because they facilitate tourism and the transaction ofhighly-desired business.

Consular Notification

In her June 2003 testimony, State Department official Jacobson mentioned another benefitof consular identification cards, namely that they facilitate the notification by U.S. law enforcementofficers of foreign consulates when foreign nationals are detained for suspected illegal activity. TheVienna Convention on Consular Relations provides that foreign nationals who are arrested ordetained have a right to protection and assistance from their own consulates. It establishes that thedetaining state is required to inform the detainee of his or her right to request that the relevantconsular officials be notified of the detention without delay. Consular notification is relatively easywhen the detainee is carrying a card that identifies him as a national of another state, but it isdifficult, and not always achieved, when the detainee lacks any documentation, and his identity,relatives, and nationality are unknown and often withheld out of fear. According to Ms. Jacobson,consular notification is a very serious issue for the Department of State, and it is "workingassiduously to ensure U.S. compliance," in part so that U.S. consulates will be informed when U.S.citizens are detained abroad.

Consular notification is a major issue for the Mexican government. For years, Mexicanofficials have been complaining about Mexican citizens who they claim were executed for crimesor who are awaiting execution in the United States without the benefit of consular assistance andadequate defense because the consulates were never notified. In mid-August 2002, President Foxwas reported to have cancelled his August 26-28 trip to Texas and his meeting with President Bushin Crawford to protest the execution by Texas authorities of convicted police killer Javier SuarezMedina despite Mexican claims that he had not been afforded consular assistance.

In January 2003, Mexico brought a case against the United States in the International Courtof Justice on behalf of Mexican citizens sentenced to death in the United States, charging that U.S.officials have violated the Vienna Convention on Consular Relations by systematically failing toinform Mexicans of their right to consular assistance under the treaty. After several preliminarydecisions, on March 31, 2004, the International Court found that the United States had breached itsobligations under the Vienna Convention by failing to notify and enable Mexican consular officialsto assist 51 Mexican suspects who are now on death row, and it ordered the United States to reviewthe convictions and sentences of the Mexican nationals. (15) On February 28, 2005, President Bush directed state courts toreview the cases of the Mexicans in order to comply with the ICJ decision, but on March 7, 2005,the United States withdrew from the Optional Protocol that gives the International Court of Justicejurisdiction over these disputes. On March 28, 2005, the U.S. Supreme Court heard argument in thecase of a Mexican inmate on Texas' death row who claims that the state violated international lawby failing to notify Mexican consular officials before his trial for murder. On May 23, 2005, theSupreme Court dismissed the appeal to permit the lower courts to resolve the issue under PresidentBush's directive.

Proponents of the matrÃ­cula consular argue that consular identification cards make it easierfor U.S. law enforcement officials to notify consulates of the detention of foreign nationals, andthereby improve the likelihood that U.S. citizens under arrest abroad will have the benefit of consularnotification and protection. In the case of Mexico, achieving a better record on consular notificationwould remove a major irritant in the bilateral relationship. Opponents of consular identificationcards would argue that there should be other means and other indications of identity that wouldpermit law enforcement officials to adhere to the consular notification obligations, withoutestablishing a system, which, in their view, provides non-legislated immigration benefits.

Legislation in the 108th Congress

Legislation related to consular identification cards was considered by the 108th Congress. One set of measures related to acceptance of the cards for banking purposes. The major measure inthat area was the Transportation-Treasury Appropriations for FY2005, incorporated into the Consolidated Appropriations Act for FY2005 ( H.R. 4818 / P.L. 108-447 ) approved inNovember and December 2004. As enacted, the measure restored funding, without the previouslypassed prohibitions, for Treasury Department implementation of regulations permitting financialinstitutions to accept the matrÃ­cula consular cards as identity documents for banking purposes. Asecond set of measures attempted to set conditions on the issuance of consular cards by foreignmissions. The Foreign Relations Authorization Act for FY2004-FY2005 ( H.R. 1950 ),with conditions on foreign missions' issuance of these cards, was passed by the House in July 2003,but the Senate never took similar action. A third set of measures related to acceptance of consularidentification cards by U.S. federal government entities, and the major legislation in that area wasthe Intelligence Reform and Terrorism Prevention Act of 2004 ( S. 2845 / P.L. 108-458 ),approved in December 2004, that requires the Secretary of Homeland Security to propose, subjectto congressional approval, minimum standards for identification documents to be used by airlinepassengers (and, after a report, for entry to designated federal facilities). A fourth set of measureswould have made possession by an alien of a consular identification card prima facie evidence thatthe alien is deportable.

Measures on Acceptance of Consular Cards as Identity Documents for Banking Purposes

Four measures related to acceptance of consular identification cards as identity documentsfor banking purposes. The first measure would have amended existing provisions of the U.S. Codeto clearly authorize financial institutions to accept matrÃ­cula consular cards as a valid form ofidentification. The second measure would have disapproved Treasury Department regulations issuedin May 2003 that permit the use of the matrÃ­cula consular card for the purpose of opening a bankaccount. The third measure would have amended the existing provisions to prohibit the use ofidentification issued by foreign governments, other than passports, for opening financial accounts. The fourth measure, Transportation-Treasury appropriations, was passed in final form without thepreviously passed prohibitions on funding, with the final result that the Treasury Department couldcontinue to implement regulations permitting financial institutions to accept the matrÃ­cula consularcards.

H.R. 773 . Introduced on February 13, 2003, by Representative RubenHinojosa, H.R. 773 would have amended the Section 5318 provisions relating to customeridentification enacted in the USA PATRIOT Act to clearly authorize financial institutions to accepta matrÃ­cula consular issued by the Mexican government as a valid form of identification for openinga bank account. Among the findings in the bill was the following: "Accepting matricula consularas a form of identification allows Mexican immigrants to enter the financial mainstream andprovides banks and other financial institutions with a new, fast-growing market." H.R. 773was referred to the House Financial Services Committee and its Subcommittee on FinancialInstitutions and Consumer Credit.

H.J.Res. 58 . Introduced on May 22, 2003, by Representative ThomasTancredo, H.J.Res. 58 would have disapproved the Treasury Department regulations issuedon May 9, 2003 (discussed above) relating to customer identification requirements in Section 5318of the U.S. Code. (16) One "whereas" clause stated that the Treasury Department rules "permit financial institutions toaccept certain unverifiable forms of identification from 'non-United States persons' in direct violationof the clear intent of Congress ... [in] the USA PATRIOT Act.," Another stated that "there isabundant evidence of the non-verifiable and unreliable nature of identification documents issued byforeign governments to foreign nationals residing within the United States, including the 'MatriculaConsular' card." H.J.Res. 58 was referred to the House Financial Services Committee andits Subcommittee on Financial Institutions and Consumer Credit, but no action was taken within thenormal 60-day period for resolutions of disapproval to take effect.

H.R. 3674 . Introduced on December 8, 2003, by Representative Scott Garrett,H.R. 3674 would have amended Section 5318 to prohibit the use of identification issuedby foreign governments, other than passports, for purposes of verifying the identity of a personopening an account at a financial institution, including a matrÃ­cula consular card. H.R.3674 was referred to the House Financial Services Committee and its Subcommittee onFinancial Institutions and Consumer Credit.

H.R. 4818 / P.L. 108-447 . Consolidated Appropriations Act for FY2005, whichincluded the Transportation-Treasury Appropriations for FY2005 as Division H, restored fundingfor Treasury Department implementation of regulations permitting financial institutions to acceptthe matrÃ­cula consular cards.

The House Transportation-Treasury Appropriations Subcommittee voted 9-7, on July 15,2004, to approve an amendment by Representative John Culberson to H.R. 5025 ,Transportation-Treasury Appropriations for FY2005, to prohibit the use of funds by the Secretaryof the Treasury "to publish, implement, administer, or enforce regulations that permit financialinstitutions to accept the matrÃ­cula consular identification card as a form of identification." Representative Culberson claimed that his amendment had the support of the Department ofHomeland Security, the FBI, the Justice Department, and a U.S. Attorney in Texas. He argued thatthe amendment was aimed at ending the use of a totally unreliable form of identification that couldbe obtained by criminals and terrorists. Those opposing the amendment argued that the consularcards were safe and that the Subcommittee was acting precipitously and without adequateinformation. (17)

The full Appropriations Committee approved the overall measure on July 22, 2004, aftervoting 25-26 to defeat an amendment by Representative Ed Pastor that would have stricken thelanguage of the Culberson amendment described above. This action left intact the previouslyapproved prohibition on Treasury funding for implementation of regulations permitting financialinstitutions to accept the matrÃ­cula consular cards. Representative Culberson argued that the cardsare unreliable and could be used by terrorists to falsify their identities. Representative Pastor andothers argued that the cards were reliable and that the Department of Homeland Security could writeregulations to deal with their concerns, without blocking the use of the cards for financialtransactions. (18)

When the House considered the Transportation-Treasury Appropriations for FY2005( H.R. 5025 ) on September 14, 2004, Representatives Oxley and Frank, Chairman andRanking Member of the House Committee on Financial Services, offered an amendment that wasapproved 222-177 to strike the Culberson amendment described above, thereby restoring fundingfor the Treasury Department so that it could continue to implement regulations on identity cards forbanking services in effect since May 2003. The sponsors of the amendment argued that the existingregulations were working effectively and that they had the support of the Administration. Opponentsof the amendment argued that the Treasury regulations were too lax in that they permitted the useof documents that are easily forged, that might be used by terrorists, and that are largely used bypersons who are illegally in the United States. After consideration of other amendments, the overallmeasure was passed by the House on September 22, 2004, thereby restoring previous authorities withrespect to consular ID cards. Since the Senate never completed action on the separate appropriationmeasure, the act was incorporated into the Consolidated Appropriations Act for FY2005( H.R. 4818 ) that was approved by both houses of Congress on November 20, 2004, and,after passage of a corrective measure, was signed into law ( P.L. 108-447 ) on December 8, 2004.

Measure to Set Conditions on Foreign Mission Issuance of Consular Identification Cards

On July 15, 2003, the House approved an amendment sponsored by Representatives JohnHostettler, Elton Gallegly, and Thomas Tancredo to restrict and set conditions on the issuance ofconsular identification cards by foreign missions in the United States, but the Senate did not take anysimilar action during the 108th Congress. In the mentioned House floor action on the ForeignRelations Authorization Act for FY2004-2005 ( H.R. 1950 ), the lower house voted, 226to198, to accept House Amendment No. 246, which was added to the bill as Section 232. Theamendment would establish a series of restrictions on the issuance of consular identification cardsby foreign missions. It would direct the Secretary of State to issue regulations requiring foreignmissions to: (1) notify the Secretary of each consular identification card issued in the United States,including the name and address of each recipient; (2) issue cards only to bona fide nationals of thecountry; (3) maintain complete and accurate records of all cards issued and do so in an automatedsystem that can be accessed to prevent duplicate or fraudulent issuance; (4) require card recipientsto notify the mission of any change of address; and (5) make available the records of all cards issuedfor audit and review at the request of the Secretary. If the Secretary of State determined that aforeign mission had violated these regulations and that such violation threatened national securityor facilitated fraudulent or criminal acts, the Secretary would notify the relevant government that themission must suspend issuance of consular identification cards until it was in compliance. If theforeign mission failed to suspend issuance of the cards, the State Department would cease issuanceof immigrant or non-immigrant visas, or both, to nationals of that country until the mission was incompliance with the regulations. (19)

Supporters of these proposed restrictions argued that foreign governments have been issuingconsular identification cards in the United States for purposes other than those intended by theVienna Convention on Consular Relations, namely to circumvent U.S. immigration law, and that theissuance of the cards should be subject to U.S. regulation. They argued that the cards are not areliable form of identification because the Mexican government has no automated and secure systemto assure that the cards are not forged or shared, or issued to more than one individual or toindividuals relying on fraudulent documents. They further argued that the cards are susceptible tobeing used to establish false identities that may facilitate money-laundering, alien smuggling, andterrorist activity.

Opponents of the proposed restrictions argued that the restrictions are directed againstconsular identification cards in general, the Mexican matrÃ­cula consular in particular, and personsof Hispanic heritage. They argued that the requirements, especially the requirements that the recordsbe given to the United States and be subject to audit by the United States, pose unreasonablerestrictions on a foreign government's right under the Vienna Convention to register and monitor itsnationals abroad. They further argued that the penalties for non-compliance were extremely onerous. To the extent that the issuance of the matrÃ­cula consular has been viewed as improving Mexico-U.S.bilateral relations, the House-passed restrictions would likely be seen as harming the bilateralrelationship. The restrictions would also be viewed by opponents as making consular notificationmore difficult, and raising the possibility that reciprocal action by other nations might harm the U.S.government's ability to register and monitor U.S. nationals abroad.

Measures on Acceptance of Consular Cards as Identity Documents by U.S. Federal Entities

Three bills would have restricted acceptance of consular identification cards by federalentities. The first measure, the Intelligence Reform and Terrorism Prevention Act of 2004( S. 2845 / P.L. 108-458 ), was among measures to reform the intelligence services andto implement the 9/11 Commission recommendations and it may restrict the use of the consular IDcards. The legislation requires the Secretary of Homeland Security to propose, subject tocongressional approval, minimum standards for identification documents to be used by airlinepassengers (and, after a report, for entry to designated federal facilities), and it requires theestablishment of minimal standards for the issuance of drivers' licenses. Another measure wouldhave prohibited the acceptance of documents for providing federal benefits unless the documentswere issued by federal or state authorities. Still another measure would have prohibited federalemployees from accepting identification documents issued by foreign governments.

S. 2845 / P.L. 108-458 . S. 2845, as originally passed by the Houseon October 16, 2004, contained a number of related provisions. Section 3006 would have providedthat for the purpose of establishing identity to any federal employee, an alien in the United Statescould present (1) any document issued by the U.S. Attorney General or the Secretary of HomelandSecurity under the authority of an immigration law, (2) a domestically issued document that theSecretary of Homeland Security had designated as reliable and that could not be issued to an alienunlawfully present in the United States, or (3) any unexpired, lawfully issued foreign passport asdetermined by the Secretary of State. This provision would likely have precluded the presentationof the Mexican consular ID as an identity document to federal officials. Section 3052 would havebarred Federal agencies three years after enactment from accepting drivers licenses or otheridentification unless such licenses satisfied standards set by the Secretary of Homeland Security,including verification of the authenticity of the documents and proof that the person possesses or isineligible for a social security account. It would also have prohibited states from issuing driverslicenses to individuals who could not prove legal residency in the United States. S. 2845 and H.R. 10 were among the measures to reform the intelligence services and toimplement the 9/11 Commission recommendations that received expedited treatment in lateSeptember and October 2004. S. 2845 was passed, amended, by the Senate on October6, 1004. H.R. 10 was approved, amended, by the House on October 8, 2004, after whichthe text was incorporated into S. 2845 and was considered passed by the House onOctober 16, 2004. Proponents of the specified immigration provisions argued that they werenecessary to prevent the acquisition by possible terrorists of identity documents that would permitentry to airplanes and federal buildings where they could cause harm. Opponents argued mostly thatthe measures were not central to the main purpose of the legislation, namely reform of theintelligence services, and that the measures had not been adequately considered.

Some of the mentioned provisions were among the most difficult to resolve in conference,however. Eventually, after lengthy negotiations and an agreement to consider the left out mattersearly in the 109th Congress, the conferees agreed upon a report and bill ( H.Rept. 108-796 ) that wasfiled on December 7, 2004. (20) The conference report was approved by the House and the Senateon December 7 and 8, respectively, and was signed into law ( P.L. 108-458 ) as the IntelligenceReform and Terrorism Prevention Act of 2004 by the President on December 17, 2004. Section7220 of the enacted legislation requires the Secretary of Homeland Security to propose, subject tocongressional approval, minimum standards for identification documents to be used by airlinepassengers (and, after a report, for entry to designated federal facilities), and establishes strict defaultstandards in the event of congressional disapproval. Section 7212 requires the establishment ofminimal standards for the issuance of drivers' licenses.

H.R. 502 . Introduced by Representative Tancredo, H.R. 502 wouldprohibit entities of the federal government, in providing federal public benefits or services thatrequire the recipient to produce identification, from accepting any identification document, unlessthe document was issued by a federal or state authority and subject to verification by the federalgovernment. H.R. 502 was referred to the House Committee on Government Reformand its Subcommittee on Criminal Justice, Drug Policy and Human Resources, to the Committee onHouse Administration, and to the Committee on the Judiciary and its Subcommittee on Crime,Terrorism, and Homeland Security.

H.R. 687 . Introduced by Representative Gallegly, H.R. 687 wouldprohibit federal employees from accepting, for purposes of establishing identity, forms ofidentification issued by foreign governments. The bill would exempt passports from the prohibitionif federal law authorized passports to be used for a specific purpose on the date of enactment. H.R.687 was referred to the House Committee on Government Reform and its Subcommitteeon Criminal Justice, Drug Policy and Human Resources, to the Committee on House Administration,and to the Committee on the Judiciary and its Subcommittee on Immigration, Border Security, andClaims.

Measure to Make Possession of a Consular Identification Card Prima Facie Evidence that the Alien is Deportable

H.R. 4440 . Introduced on May 20, 2004,by Representative Gallegly, H.R.4440 would amend the Immigration and Nationality Act to make possession by an alienof a consular identification card issued by a foreign mission prima facie evidence that the alien isdeportable, and make any illegal alien who presented a consular ID card for federalidentification-related purposes inadmissable for entry for 10 years. H.R. 4440 was referredto the House Judiciary Committee and its Subcommittee on Immigration, Border Security, andClaims.

Legislation in the 109th Congress

Legislation related to the acceptance of consular identification cards as identity documentsby government and banking institutions is being considered in the 109th Congress. The REAL IDAct of 2005 ( H.R. 418 ) that would establish identity card standards was passed by theHouse on February 10, 2005, and this measure was attached by the House to the EmergencySupplemental Appropriations for FY2005 ( H.R. 1268 ) as Division B on March 16,2005. Following conference, H.R. 1268 was passed with the specified provisions by theHouse and Senate in early May 2005, and it was signed into law ( P.L. 109-13 ) on May 11, 2005.

Measures on Acceptance of Consular Cards as Identity Documents by Federal and State Entities

Three measures have been introduced that deal with the acceptance of consular ID cards byfederal and state entities, and one of the measures ( H.R. 418 ) was subsequentlyattached to the FY2005 Emergency Supplemental ( H.R. 1268 ) as Division B and wasenacted into law ( P.L. 109-13 ) on May 11, 2005. As introduced, two related measures, H.R. 368 , which deals solely with drivers' license standards, and H.R. 418 ,which contains additional provisions, would establish identity card standards for the issuance ofdrivers' licenses that would seem to preclude the use of consular ID cards. As enacted, P.L. 109-13 includes provisions that require a determination that the applicant is lawfully present in the UnitedStates and that specify that an official passport is the only acceptable foreign identity document. Athird measure ( H.R. 925 ) would prohibit a federal agency from accepting a form ofindividual identification issued by a foreign government, except for a passport authorized for certainuses by existing legislation.

H.R. 368 , Drivers' License Security and Modernization Act. This bill wasintroduced on January 26, 2005, by Representative Tom Davis of Virginia, and referred to the HouseCommittees on Government Reform and the Judiciary. H.R. 368 would establishidentity card standards for federal recognition and the issuance of drivers' licenses. The provisionsare similar to Title II -- Improved Security for Drivers' Licenses and Personal Identification Cards,Sections 201-207, in H.R. 418 , and Title II (with the same title) of Division B of theFY2005 Emergency Supplemental Appropriations (see below). (21)

H.R. 418 , the REAL ID Act of 2005/ H.R. 1268 , EmergencySupplemental Appropriations for FY2005. H.R. 418 was introduced on January 26,2005, by Representative Sensenbrenner, as a holdover from consideration of the Intelligence Reformand Terrorism Prevention Act of 2004 ( S. 2845 / P.L. 108-458 ) in December 2004 (seeabove under Legislation in 108th Congress). The bill was referred to the House Committees on theJudiciary, Homeland Security, and Government Reform, but no formal consideration wasundertaken. It would, among other things, establish identity card standards for the issuance ofdrivers' licenses to be used for official federal purposes. These standards would seem to precludethe use of consular ID cards for those purposes. H.R. 418 was considered on February9-10, 2005, under a structured rule, and was approved, with amendments, by a 261-161 vote onFebruary 10, 2005. (22) The bill was attached to the Emergency Supplemental Appropriations for FY2005( H.R. 1268 ) as Division B, on March 16, 2005. Following conference, H.R.1268 was passed with the specified provisions by the House and Senate in early May 2005,and it was signed into law ( P.L. 109-13 ) on May 11, 2005.

As enacted, Subsection 201 (3) of H.R. 1268 states that the term "officialpurpose" includes but is not limited to accessing federal facilities, boarding federally regulatedcommercial aircraft, entering nuclear power plants, and any other purposes that the Secretary [ofHomeland Security] shall determine. Subsection 202(a) provides that beginning three years after thedate of enactment, a federal agency may not accept, for any official purpose, a driver's license oridentification card issued by a state to any person unless the state is meeting the specified standards. In addition to proof of identity, birth, and principal residence, the minimum issuance standards inSubsection 202(c) include (1) proof of the person's social security number or verification that theperson is not eligible; and (2) evidence of lawful status in the country in one of several specifiedcategories, with issuance of easily recognizable temporary drivers' licenses for those with temporaryauthorized stays. Subsection 202(c)(3) under the heading of verification of documents requires thatthe state shall not accept any foreign document, other than an official passport, to meet the minimumstandards, and it requires that not later than September 11, 2005, the state shall agree to use thenational automated system known as Systematic Alien Verification Entitlements to verify the legalpresence of non-U.S. citizens in the country. Subsection 202(d)(5) provides that in the event thata presented social security account number is already registered to another person, "the state shallresolve the discrepancy and take appropriate action." Section 203 requires that for a state to beeligible for financial assistance it must participate in the interstate compact regarding the sharing ofdrivers' license data, known as the Driver License Agreement.

H.R. 925 , Identification Integrity Act of 2005. Introduced on February 17,2005, by Representative Gallegly, this bill would prohibit a federal agency from accepting a formof individual identification issued by a foreign government, except for a passport if it is authorizedfor certain uses by federal law at the date of enactment of this legislation. This would seem to clarifythat consular ID cards would not be accepted by federal agencies. H.R. 925 was referredto the House Government Reform, Judiciary, House Administration and Armed ServicesCommittees.

Measures on Acceptance of Consular Cards as Identity Documents for Banking Purposes

One measure ( H.R. 815 ) has been introduced to prohibit the use of anyidentification documents issued by foreign governments other than passports for opening bankingaccounts. This would seem to preclude the use of consular ID cards for such purposes.

H.R. 815 , Financial Customer Identification Verification ImprovementAct. Introduced on February 15, 2005, by Representative Garrett, this bill would amend Section5318(1) of title 31, United States Code (relating to identification and verification of account holders)to prohibit the use of any identification documents issued by foreign governments other than officialpassports for the purpose of opening accounts with financial institutions. H.R. 815 wasreferred to the House Committee on Financial Services.