Biometrics and Immigration

Should DHS expand its use and collection of this information?

October 14, 2020

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The notice of proposed rulemaking (NPRM) from DHS would amend regulations on the use and collection of biometrics by USCIS, U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). The proposed rule would authorize DHS to collect biometrics from a larger population of individuals regardless of age, to expand the types of biometric information it collects, and to require DNA test results to verify a claimed genetic relationship.[1] In the context of the rule, immigration benefit requests refer to all requests processed by USCIS.[2] In addition, the rule’s provisions removing age restrictions for biometrics collection would apply to Notice to Appear (NTA) issuances related to removal proceedings. DHS estimates that the rule’s costs would range from $2.25 to $3.51 billion over 10 years (at a 7 percent discount rate), in exchange for qualitative benefits.

This public interest comment begins by summarizing the proposed rule and discussing the statutory authority delegated to DHS. It then evaluates the department’s regulatory impact analysis, emphasizing the rule’s failure to comply with established requirements for regulatory analysis. Then, our comment argues that the rule’s 30-day comment period should be reopened to allow the public to have a meaningful opportunity to comment. We conclude by summarizing the key recommendations included in the comment.

Overall, the NPRM communicates that DHS has made certain determinations about what action it should take without sufficiently explaining the underlying problems that inform those decisions. DHS also conflates its delegated authority with a need for the regulatory action. While executive branch guidance instructs agencies to promulgate regulations required by law or needed to interpret the law, it does not give agencies free reign to establish or update regulations simply because they have been delegated authority. DHS must still demonstrate the problems that necessitate its regulatory response or refer to the statutory authority that compels a regulatory action.

In this public interest comment, we recommend that DHS:

  1. Provide evidence to identify the problems it seeks to solve through regulation and provide detail on the extent and significance of each problem.
  2. Identify and assess alternative regulatory approaches and justify its preferred option in light of those alternatives.
  3. Conduct a Privacy Threshold Analysis and a Privacy Impact Assessment for its NRPM and publicly disclose the results before finalizing the rule.
  4. Estimate the costs of facilitating DNA collection, using a similar method as it did for estimating the costs incurred by individuals.
  5. Report the impacts from the “Other Impacts” and “Regulatory Flexibility Analysis” sections along with the costs in Table 1 (Summary of Provisions and Impacts) and Table 2 (OMB A-4 Accounting Statement). In other words, DHS should include any costs related to ICE and CBP actions and the small entity impacts in its cost estimates.
  6. Revise its regulatory impact analysis to explicitly evaluate whether the claimed benefits of the proposed rule justify its extensive costs, using analytical methods such as ranking the importance of qualitative effects and break-even analysis.
  7. Incorporate plans for retrospective review in its final rule, including data to collect and metrics to track that could help evaluate the regulation’s success.
  8. Comply with EO 13771 by converting its rule’s costs from a 10-year to an infinite time horizon and report the incremental costs to the public. It should designate the rule a significant regulatory action and offset its incremental costs according to the department’s cost allowance.
  9. Reopen the comment period of this proposed rule for an additional 30 days. If DHS chooses not to do so, it should include an explanation detailing its decision to limit the comment period to 30 days in its final rule.

[1]    DHS, “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services,” 85 FR 56338, September 11, 2020. Available at:

[2]    See, 85 FR 56339, footnote 2.