consultation: (312) 836-9040|(847) 465-0007, Chicago Immigration
SUMMARY OF THE REAL ID ACT 2005, Public Law 109-13, Effective May 11,
- Public Law 109–13, 109th Congress, REAL ID ACT OF 2005;
- Analysis of the Major Provisions of the REAL ID Act
of 2005, CRS Immigration;
- Judicial Review changes in the REAL ID Act;
- Sections 101 and 106 of the
REAL ID Act of 2005, Sec. 242 of the Immigration and
Nationality Act (INA) as amended
The “Real ID Act of 2005" was signed into law (Pub. Law No.
May 11, 2005, as Division B of the Emergency Supplemental Appropriations
Act for Defense, the Global War on Terror, and Tsunami Relief, 2005,
became effective on the date of enactment.
(Sec. 101) Amends Immigration and Nationality Act (INA) provisions
concerning asylum to: (1) authorize the Secretary of Homeland Security,
in addition to the Attorney General, to grant asylum (retroactive to
March 1, 2003); (2) require asylum applicants to prove that race,
religion, nationality, membership in a particular social group, or
political opinion was or will be (if removed) the central
their persecution; and (3) provide that an applicant's testimony may
sufficient to sustain this burden of proof only if the trier of fact
determines that it is credible, persuasive, and fact-specific. Requires
corroborating evidence where requested by the trier of fact unless the
applicant does not have the evidence and cannot reasonably obtain it
without departing the United States. States that the inability to obtain
corroborating evidence does not excuse the applicant from meeting his
her burden of proof.
Lists factors relevant to credibility determinations in asylum cases,
including (but not limited to) the: (1) demeanor, candor, or
responsiveness of the applicant or witness; (2) inherent plausibility
the applicant's or witness' account; (3) consistency between the
applicant's or witness' written and oral statements; (4) internal
consistency of each such statement; (5) consistency of such statements
with other evidence of record (including the Department of State's
reports on country conditions); and (6) any inaccuracies or falsehoods
in such statements regardless of whether they go to the heart of the
applicant's claim. States that there is no presumption of credibility.
Makes this Act's provisions regarding proof requirements and credibility
determinations in asylum proceedings applicable to other requests from
relief for removal.
Limits judicial review of determinations regarding the availability
Removes the numerical limit on the number of aliens granted asylum who
may become lawful permanent residents in any fiscal year (currently set
Repeals provisions of the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA) requiring a study and report on terrorists in the
(Sec. 103) Expands the grounds of inadmissibility and deportability
to terrorist or terrorist-related activity to include aliens who: (1)
are representatives of terrorist organizations or political, social,
other groups that endorse or espouse terrorist activity; (2) are members
of designated terrorist organizations; (3) are members of organizations
that engage in specified acts of terrorism; (4) endorse or espouse
terrorist activity or persuade others to do so; or (5) have received
behalf of any organization that at the time was a terrorist
(Sec. 105) Bars inadmissible arriving aliens from seeking judicial
review of removal orders through habeas corpus, mandamus, or other
Imposes a similar bar on denials of discretionary relief and orders
against criminal aliens, with an exception for petitions for review
concerning constitutional claims or pure questions of law.
Establishes the INA's judicial review provisions as the sole avenue
challenging removal orders and reviewing claims arising under the United
Nations Convention Cruel, Inhuman, or Degrading Treatment or Punishment.
Requires petitions for review filed under pre-IIRIRA law to be treated
as if filed under INA as amended by this section. States that such
petitions shall be the sole and exclusive means for judicial review of
orders of deportation or exclusion.
(Sec. 106) Sets forth requirements for delivery bonds (guaranteeing
delivery of an alien against whom the Department of Homeland Security
(DHS) has issued an order to show cause or a notice to appear) and
bonding agents. Requires such bonds to expire one year from the date
issue, at cancellation or upon surrender of the principal, or
immediately upon nonpayment of the renewal premium. Authorizes annual
Requires cancellation of delivery bonds and exoneration of the surety:
(1) for nonrenewal after the principal's surrender for removal; (2) if
the surety or bonding agent provides reasonable evidence of
misrepresentation or fraud in the bond application; (3) upon the death
or incarceration of the principal or the surety's inability to produce
the principal for medical reasons; (4) if the principal is detained by
law enforcement agency; (5) if it can be established that the principal
departed the United States without permission; (6) if the foreign state
of which the principal is a national is designated under temporary
protected status provisions after posting of the bond; or (7) if the
principal is surrendered to DHS, upon removal by the surety or bonding
Authorizes the surrender of the principal to DHS for removal at any
time, before bond conditions are breached, if the surety or bonding
agent believes that the principal has become a flight risk.
States that a principal may be surrendered without the return of any
bond premium if the principal: (1) changes address without providing
advance written notice to the surety, bonding agent, and Secretary; (2)
hides or is concealed from the surety, bonding agent, or Secretary; (3)
fails to report to the Secretary annually; or (4) violates the contract
with the bonding agent or surety, commits any act that may lead to a
breach of the bond, or otherwise violates bond obligations or
Gives bonding agents or sureties desiring to surrender the principal
right to: (1) petition the Secretary or any Federal court, without
payment of fees or court costs, for an arrest warrant; (2) receive two
certified copies of such warrant and the bond undertaking; and (3)
pursue, apprehend, detain, and surrender the principal to any DHS
detention official or facility or to any detention facility authorized
to hold Federal detainees.
Requires all delivery bonds to be secured by a corporate surety that
certified as an acceptable surety on Federal bonds and whose name
appears on Treasury Department Circular 570 and to set forth specified
information. Requires information about warrants for a principal's
arrest to be entered into the National Crime Information Center
Gives bonding agents or sureties complete access to information about
the principal held by Federal, State, or local governments (or any
related subsidiary or police agency) that the Secretary determines may
be helpful in locating or surrendering the principal.
Establishes graduated penalties for bonding agents and sureties who
to surrender a principal within 15 months of the issuance of an arrest
warrant, subject to waiver. Gives bonding agents or sureties the
absolute right to locate, apprehend, arrest, detain, and surrender any
principal, wherever he or she may be found, who violates any bond term
or condition. Limits total liability on any surety undertaking to the
face amount of the bond.
Makes this section applicable to bonds and surety undertakings executed
before, on or after the date of enactment of this Act.
(Sec. 107) Requires aliens arrested and detained pending a removal
decision to post a delivery bond of at least $10,000 (currently, $1,500)
in order to be released from custody, unless an immigration judge orders
such alien's release on his or her own recognizance upon a finding that
the alien is not a flight risk and is not a threat to the United States.
(Sec. 108) Requires the Secretary to take into custody any alien subject
to a final order of removal and to cancel bond if the alien is produced
within the prescribed time limit whether or not DHS accepts custody.
States that the obligor on the bond shall be deemed to have
substantially performed all conditions and shall be released from
liability if the alien is produced within such time limit. Makes this
section applicable to all immigration bonds posted before, on, or after
the date of enactment of this Act.