By Jennifer K. Wagner J.D., Ph.D.
Last September, as discussed on this blog in further detail, the U.S. Department of Homeland Security (DHS) issued a notice of public rulemaking in which it signaled a dramatic expansion of its collection and use of biometrics. The rule would have had significant implications for the data privacy of immigrants as well as their American sponsors.
The proposed rule was highly controversial and more than 5,000 public comments were submitted in its short 30-day comment period. Undeterred by the extensive criticism of the plan, the Trump administration pressed forward in its final months, with DHS concluding an internal review in mid-December and the Office of Information and Regulatory Affairs concluding its EO12866 review just one week before President Biden’s inauguration. The Trump administration failed to publish its final rule expanding the collection and use of biometrics in the Federal Register in its final days of power.
On Inauguration Day, White House Chief of Staff Ron Klain promptly issued a memo freezing all so-called “midnight regulations” and instructing agencies to withdraw any rules that had yet to be published in the Federal Register. Shortly thereafter, President Biden issued an Executive Order 14012 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans). DHS ultimately did withdraw this proposed rule to expand the collection and use of biometrics earlier this month on May 7.
In February, Secretary Alejandro N. Mayorkas was confirmed by the U.S. Senate and became the first Latino and immigrant ever to lead DHS. Leadership of U.S. Citizenship and Immigration Services (USCIS)—a position Secretary Mayorkas held previously during the Obama Administration—however, remains unsettled. In April, President Biden nominated Ur Jaddou to serve as director of USCIS, and the Senate Judiciary Committee is expected to hold her nomination hearing in June. While the Biden administration’s future plans for biometrics are unknown, the official position of DHS, as stated in the withdrawal published in the Federal Register, is that the agency continues to be interested in gaining increased flexibility for the collection and use of biometrics. In that official withdrawal notice, DHS acknowledged that many of the voiced concerns were justified and warrant “additional deliberation” and underscored that its plans to pursue biometrics would need to be aligned with EO14012. Given the shaky legal authority for such a dramatic expansion of biometrics as was proposed last year, one might expect the Biden administration to proceed cautiously here and perhaps even to seek clear legislative authority for its biometrics plans as part of comprehensive immigration reforms.
Suggested further readings:
- Public Comments submitted by D Berger, SH Katsanis, M Hu, and JK Wagner, available here.
- D Berger, M Hu, SH Katsanis, and JK Wagner. “Biometrics and Midnight Regulations.” The Regulatory Review. March 11, 2021, available here.
Jennifer K. Wagner, J.D., Ph.D., is a solo practicing attorney and also conducts research as an Assistant Professor in the Center for Translational Bioethics & Health Care Policy at Geisinger. She is a former contributing editor of the Genomics Law Report and has published scholarly articles in prominent legal and scientific journals, including the Journal of Law & Biosciences; Journal of Law, Medicine, & Ethics; Albany Law Journal of Science & Technology; Virginia Sports and Entertainment Law Journal; North Carolina Journal of Law and Technology; Nature Communications; Nature Medicine; American Journal of Human Genetics; Genetics in Medicine; and PLOS Genetics. She served as a AAAS Congressional Fellow in a U.S. Senator’s office in 2014-2015, and her work has been cited by the Supreme Court of the United States. You may follow her on Twitter as @DNAlawyer. Views expressed are her own.