Week 47: Administration plans to collect more biometric data in relation to immigration applications
Immigration news, in context.
This is the forty-seventh edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we look at a new regulation that seeks to collect even more biometric data from prospective immigrants.
In Under the Radar, we discuss ICE’s decision to resume street arrests and raids.
In Next Destination, we dig into the latest with the census, and the administration’s attempts to keep immigrants from counting towards congressional apportionment.
The Big Picture
The news: The Trump administration is preparing to overhaul the type of biometric data they can collect in relation to immigration applications, who they can collect it from, and when they can collect it.
What’s happening?
BuzzFeed News’ Hamed Aleaziz reported on an unpublished draft regulation that would dramatically expand the biometric data that the U.S. Citizenship and Immigration Services (USCIS) would collect in relation to practically all immigration applications. In addition to the already-standard collection of photographs, fingerprints, and signatures, the agency would by default compile applicants’ iris scans, palm prints, voice prints, and sometimes DNA, as well as authorize collection of biometrics using technology not currently available.
Like much else in immigration policy, the exact scope of biometrics collection permitted for immigration benefits applications is ill-defined. Several different statutes mention the collection of data in relation to the concept of registration of status or admission. For example, 8 U.S.C. § 1201, relating to the issuance of visas, stipulates that “[e]ach alien who applies for a visa shall be registered in connection with his application, and shall furnish copies of his photograph,” and § 1302 further notes that people fourteen years or older who are in the country thirty days or longer and haven’t been registered should “apply for registration and to be fingerprinted.”
Most types of applications require submission of this information, with even applicants for short-term tourist and business visas having to provide fingerprints and photographs. In the aftermath of 9/11, Congress created unified systems and databases to store and share this data across government agencies (more on that later). Still, the type of data required did not shift, and regulations excluded children under 14 years old from having to comply with the requirements.
Following the initial report, Homeland Security officials confirmed that the regulation would be published soon but did not provide additional detail on what it would look like. As described, the new collection policies would become the standard for all applications before USCIS, with only case-by-case exceptions. Notably, the rules would apply to everyone connected to an application, not only the applicant. So, if someone was petitioning for a family member like a parent or spouse, for example, they would have provide their biometrics as well, not only the family member who was actually applying. This would constitute a major departure from how biometrics are handled now.
The collection wouldn’t also necessarily take place just at the moment that an application is first tendered, but the government would have the capability to demand that people involved in any immigration application report to a biometric collection appointment at any time until they became a U.S. citizen.
How we got here
There are biometrics requirements for virtually every category of non-citizen, including those on work visas, DACA recipients, green card holders, and more. Continuous “vetting,” however, is not the norm, but this latest move dovetails with the administration’s attempts to keep tabs on immigrants and to reduce immigration through bureaucratic measures.
Earlier this year, ICE began fingerprinting unaccompanied migrant children in government shelters run by the Office of Refugee Resettlement, an agency within the Department of Health and Human Services. HHS officials told BuzzFeed News’s Hamed Aleaziz, who broke the story, that the new fingerprinting requirement was necessary to “verify a potential sponsor’s identity and relationship to a child before releasing a child to a sponsor.” HHS also collects fingerprints from migrant children’s prospective sponsors and shares that information with ICE, which has led to arrests the past.
The federal government has long collected certain biometric data from non-citizens, particularly in the wake of 9/11. The United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program, for example, tracks the fingerprints of people who enter the U.S. via ports of entry. People who apply for DACA have to submit their biometrics to the federal government, which many feared would lead to their imminent deportation if the Trump administration ended the program. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act allocated funding to the the now-defunct Immigration and Naturalization Service to ensure it collected fingerprints for all “illegal or criminal aliens apprehended nationwide,” in part so the government could rapidly deport anyone who had previously been removed from the country.
As the Migration Policy Institute notes, post-9/11 immigration policy has largely been treated as a national security issue. Under Bush, DHS—which, as a reminder, was established in 2003—created the National Security Entry-Exit Registration System (NSEERS), a database monitoring certain non-citizens adult men from Muslim-majority countries. As part of NSEERS, adult visa-holding men from 25 countries were required to submit biometric information to DHS. According to MPI, NSEERS put 13,000 people in removal proceedings.
Broadly speaking, biometrics aren’t just used to keep track of people’s immigration status. The creation of the Department of Homeland Security tied immigration policy to counterterrorism and national security, conflating the two and creating an imperative to treat all non-citizens like potential national security threats. This latest regulation is an extension of that mindset, which began long before Trump, with an additional anti-immigrant edge. It’s likely intended to have a chilling effect; if the regulation dissuades prospective immigrants from coming to the U.S. or encourages those already here to leave, the administration would surely see that as a victory.
Looked at this way, the regulation is part of the administration’s war on the very legal immigrants it once claimed to want. We’ve written about other such efforts, including a recent ban on immigrant visas, the health insurance rule for prospective immigrants, the public charge rule, and the intentional gutting of USCIS.
What’s next?
The regulation has not yet been published, so we have to make do with the descriptions. An official told CNN that the addition of voice prints would help streamline calls to USCIS, with applicants presumably being recognized automatically by their voices and directed more quickly to their case information. Beyond that, though, the rationale seems to rest entirely on some hazy notion of security, though it’s very much unclear what added vetting capability something like an iris scan would provide.
The more straightforward explanation is that this is another bureaucratic obstacle meant to be dissuasive, to discourage people from applying for immigration status in the first place or creating more opportunities to reject them. Biometric appointments were already shut down for months due to the pandemic, and each additional step is a chance for an issue to arise.
A potential legal pitfall for the rules could be the effort to collect the data from people who aren’t applicants, including even those filing affidavits of support on their behalf. By default, this would include many people who are U.S. permanent residents and citizens. While the law doesn’t explicitly address the collection of biometrics from people who aren’t the benefits applicant, by and large it refers to collection of data from the “alien,” not anyone else.
The administration has taken a keen interest in biometric data collection recently, with a new rule providing for the widespread collection of DNA from immigrants in custody (we wrote about in depth when it was first proposed). DHS was sued late last year over a program to collect DNA from asylum seekers at the border, ostensibly to prove familial relationships.
As we’ve noted, the administration has long had an obsession with the idea that most people seeking asylum or any other immigration benefits are somehow doing so fraudulently. It’s likely that there will be further efforts to collect as much personal biometric data from both immigrants and nonimmigrants of all types.
There are no limitations on how long this data can be stored by the government. Once provided, it can be kept indefinitely and practically used for any sort of investigative or enforcement purpose. As with other areas of law, the policymaking has not really kept up with technological capability.
Under the Radar
ICE arrests resume despite pandemic
Immigration and Customs Enforcement took a brief hiatus from street arrests and home raids due to the coronavirus pandemic, but both appear to be back on. In a series of news releases published on its website, ICE boasted of recent arrests across the country, including in Texas, California, Utah, Nevada, Idaho, Montana, and New Jersey.
Although ICE arrests seem to have slowed—or perhaps stopped altogether—over the last few months, the agency has continued transferring immigrants from criminal custody to its own detention centers. Deportation proceedings for people in detention have continued throughout the pandemic, even as hearings for non-detained immigrants have largely been put on hold. The combination of transfers and hearings has contributed to an explosion of coronavirus cases in ICE detention centers, many of which have become hotbeds for the virus.
By taking new people into custody, ICE is all but guaranteeing that the virus will continue to spread within and between detention centers. There’s no telling whether someone who was recently arrested is an asymptomatic carrier, and it’s unlikely that ICE is testing each new person it takes into custody, especially those who don’t have symptoms.
Next Destination
Litigation continues over administration’s attack on the census
Last month, a federal judge expedited the ongoing census litigation after President Donald Trump issued a memo that will exclude unauthorized immigrants from counting towards an area’s political apportionment. Meanwhile, response rates are lagging across the country.
There have been a lot of lawsuits over the Trump administration’s handling of the 2020 census, including one that made its way to the Supreme Court last year. As a reminder, the administration attempted to add a question regarding U.S. citizenship to the census, allegedly to help the Justice Department better enforce the Voting Rights Act. Of course, that wasn’t the real motivation for the question: files found on a deceased Republican operative’s hard drive indicated that redrawing legislative districts based on citizen population, as opposed to total population, would benefit “Republicans and Non-Hispanic Whites” and would “clearly be a disadvantage for Democrats.” In his decision, Chief Justice John Roberts wrote that the Voting Rights rationale was “pretextual,” i.e., a bullshit reason.
But the court didn’t rule that the administration couldn’t add the citizenship question to the census; it basically told them to try again with a better rationale. (A similar thing happened with the DACA lawsuit, which we have written about at length.)
The 2020 census ended up being printed without the citizenship question, but as NPR’s Hansi Lo Wang reported, the Census Bureau still asked questions regarding U.S. citizenship on other surveys and forms. Meanwhile, the administration has looked for other ways to prevent undocumented immigrants from counting towards apportionment—the number of congressional representatives allotted to a particular district, which is determined by its population—hence the July memo.
In August, a coalition of civil rights groups sued the administration over yet another attempt to derail the census: the truncated timeline for administering it, which the suit claims “disregards the Bureau's own prior conclusions that such rushed processing renders it impossible to fulfill its constitutional obligation to ensure reasonable quality and accuracy of 2020 Census data.” The administration also announced it would stop outreach efforts, including collecting responses online and sending census takers to knock on doors in neighborhoods with low response rates.
The outcome of all of this will likely be a drastic undercount, which will affect everything from federal funding for public schools and roads to the number of congressional representatives. There’s particular concern that undocumented immigrants will opt out of responding due to the president’s rhetoric, the administration’s policies, and the fear that the government will share their information with ICE or other enforcement agencies. Even if Trump is voted out in November, the next few months will significantly shape the next decade.