March 12, 2021
Management and Program Analyst
Office of Field Operations
U.S. Customs and Border Protection
Re: Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States; Re-Opening of Comment Period
Dear Ms. Ortiz:
The Center for Immigration Studies (CIS) submits the following public comment to the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) re-opening of the comment period of the "Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States" notice of proposed rulemaking, which originally published in the Federal Register on November 19, 2020.
CIS is an independent, non-partisan, non-profit, research organization. Founded in 1985, CIS has pursued a single mission — providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States. CIS is the nation's only think tank devoted exclusively to the research of U.S. immigration policy to inform policymakers and the public about immigration's far-reaching impact. The Center is animated by a unique pro-immigrant, low-immigration vision, which seeks fewer immigrants but a warmer welcome for those admitted.
On November 19, 2020, CBP published in the Federal Register a notice of proposed rulemaking entitled "Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States", concerning the collection of facial images and other biometrics from aliens entering and departing the United States. The proposed rule had a 30-day public comment period that ran through December 21, 2020. Prior to publishing a final rule in the Federal Register, there was a change of administration on January 20, 2021. Based on comments CBP received during the comment period, DHS, under the new administration, decided to reopen the comment period for an additional 30 days. The Federal Register notice reopening the comment period published on February 10, 2021 and runs through March 12, 2021.
CIS recognizes the importance of collecting biometrics from aliens both arriving to and departing from the United States. However, while this proposed rule identifies policies that are better than the status quo, CIS cautions that it does not go far enough to thoroughly screen and vet all aliens arriving to and departing from the United States.
II. CBP Must Fully Utilize Biometrics Authority to Thoroughly Vet All Aliens Arriving to And Departing from the United States
On September 11, 2001, Islamic terrorists hijacked several airplanes, striking each of the World Trade Center towers and the Pentagon. Another hijacked plane crashed into a field in Pennsylvania after the passengers on board heroically fought the terrorists for control of the plane. Shortly thereafter, each of the Twin Towers was reduced to rubble. In total, nearly 3,000 Americans lost their lives on this tragic day. As Americans would come to learn, the 9/11 terrorist attacks weren't just a failure of the intelligence community but also a failure of our immigration system, as most of the terrorists were visa overstayers. The Department of Homeland (DHS) was created in response to the 9/11 terrorist attacks. Seventeen years ago, Congress passed legislation mandating a complete biometric entry-exit tracking system for all land, air, and sea ports of entry. On several occasions since, Congress has passed additional legislation reaffirming this desire. Yet, to date, the United States only has a fully implemented biometric entry system but not the corresponding, and necessary, biometric exit system.
A. CBP Should Not Impose Age Restrictions for Biometrics Collection By Regulation
Current CBP regulations exempt certain aliens from the biometrics requirements under 8 CFR 215.8 and 235.1 for entry and exit, including aliens under the age of 14 and over the age of 79 years old. The proposed rule retains these age restrictions. This is a mistake and CIS encourages CBP to remove these age restrictions in the regulation.
Due to the reckless and dangerous open borders and anti-enforcement policies of the Biden administration, there is a crisis at the southern border. In February, CBP encountered 100,441 illegal aliens at the southern border, including 9,297 unaccompanied alien children (UACs) and 18,945 family units. These are historically high numbers during the time of year when unlawful border crossing attempts traditionally decline. It will only get worse during the warmer spring and summer months as the Biden administration doubles down on its refusal to enforce our immigration laws.
Removing the self-imposed age restrictions is commonsense, but absolutely critical, in light of the sustained volume of minors CBP is encountering at the border. Part of the DHS mission is to combat human trafficking, human smuggling, and other forms of victimization. Anecdotally, it has been reported that Border Patrol officers encounter the same children in the desert four-to-five times, yet are powerless to do anything meaningful to stop this alien child abuse since Border Patrol cannot definitely prove it is the same children without biometrics. The coyotes and drug cartels know and exploit this vulnerability in our vetting policies. As a result, many of these alien children are tragically recycled over and over again, a phenomenon the press has called "circuit children".
DHS would be wise to remove these age restrictions from the regulations. They are completely unnecessary and have proven to be a harmful loophole that perpetuates the exploitation of alien children, contrary to the DHS mission of combating human smuggling.
Removing the age restrictions from the regulations does not require CBP to collect biometrics for all aliens of all ages. Instead, by policy, CBP can set any age exemptions it decides appropriate. Doing so provides flexibility for CBP to adjust or remove those age restrictions as necessary, based on real-world experience. Whatever justification existed at the time the regulatory age restrictions were put in, recent and current events overwhelmingly demonstrate the unintended consequences far outweigh any perceived benefit.
B. The Proposed Rule Does Not Sufficiently Expand Biometric Modalities
As written, the scope of the proposed rule seems to limit CBP's expansion of biometrics to utilizing facial recognition technology. For example, the preamble says "to enable U.S. Customs and Border Protection (CBP) to make the process for verifying the identity of aliens more efficient, accurate, and secure by using facial recognition technology, DHS is proposing to amend the regulations to provide that all aliens may be required to be photographed upon entry and/or departure." Undoubtedly, facial recognition technology offers many benefits and is continuously improving.
That said, it is a missed opportunity for CBP to not seek the authority to utilize the broadest possible biometric modalities for identity management, screening, and vetting. A literal reading of the proposed rule could foreclose the ability of DHS to take iris images, voice prints, or DNA (for the limited purpose of establishing genetic relationships). If this interpretation is correct, that is a missed opportunity and should be re-examined before CBP finalizes this regulation.
A model that CBP should emulate as it finalizes its rule is the biometrics regulation authored by its sister agency, U.S. Citizenship and Immigration Services (USCIS). On September 11, 2020, DHS published a proposed rule entitled, "Collection and Use of Biometrics by U.S. Citizenship and Immigration Services". In general, this rule would modernize biometrics collections by establishing a uniform definition of "biometrics" for all of DHS, replacing the patchwork of specified identifying modalities (e.g., fingerprint, photograph) used for various DHS purposes. In addition to defining "biometrics", the USCIS rule provides permissive authority for DHS to collect iris images, palm prints, and voice prints to improve identity and records management. Importantly, the rule would require biometrics for every application, petition, or related immigration request, eliminating the misguided current regulatory prohibition of collecting from those under the age of 14. Additionally, the rule would codify DHS's DNA collection authority to perform functions necessary for administering and enforcing immigration laws, combat fraudulent families at the southern border, and strengthen DHS's response against human trafficking and human smuggling.
As USCIS explained in the proposed rule, these changes are intended to:
Provide DHS with the flexibility to change its biometrics collection practices and policies to ensure that necessary adjustments can be made to meet emerging needs, enhance the use of biometrics beyond background checks and document production to include identity verification and management in the immigration lifecycle, enhance vetting to lessen the dependence on paper documents to prove identity and familial relationships, preclude imposters, and improve the consistency in biometrics terminology within DHS.
At the time, acting deputy secretary Ken Cuccinelli highlighted the USCIS biometrics rule as, "Leveraging readily available technology to verify the identity of an individual we are screening is responsible governing. The collection of biometric information also guards against identity theft and thwarts fraudsters who are not who they claim to be." Although the Office of Information and Regulatory Affairs (OIRA) concluded review on the USCIS biometrics final rule on January 13, 2021, it did not publish in the Federal Register before the change in administration.
C. DHS Must Finalize Both the USCIS and CBP Biometrics Rules to Maximize its Screening and Vetting Capabilities
As mentioned above, the Trump administration finalized the USCIS biometrics rule, but was unable to get it published in the Federal Register by January 19, 2021. As the Biden administration pursues CBP-specific biometrics rulemaking for entry-exit, it must also publish and implement the USCIS biometrics rule. It should be uncontroversial that collecting biometrics for aliens trying to enter or depart the country are necessary in order for DHS to conduct criminal history background checks, verify identity, and deter fraud. The same holds true in the context of immigration benefits vetting. Empowering one agency (CBP) with additional biometrics authority while hampering another (USCIS) creates a disjointed and patchwork screening and vetting apparatus within DHS that exposes the country to vulnerabilities. To avoid another 9/11, DHS must finalize and fully implement the USCIS biometrics final rule as well as finalize the CBP biometrics rule, as refined by the suggestions in this comment.
It is unconscionable that the United States has failed to fully implement universal biometric entry-exit in the last 17 years. Universal biometric entry-exit is essential to ensure that DHS knows which aliens are coming into the country and, importantly, departing. In the absence of universal biometric entry-exit, visa overstays will continue to be a problem. This is true as an immigration violation, but also runs the risk of a terrorist or other bad actor remaining in the United States beyond his or her authorized stay. We cannot return to a September 10th mindset.
CBP's biometrics proposed rule is a welcome step in the right direction. However, the proposed rule does not go far enough in expanding biometric modalities that DHS could utilize, in its discretion, for identity management, screening, and vetting. CBP should follow the USCIS biometrics final rule model of granting the most permissive authority available under the law. By policy, CBP will have the flexibility to exempt certain ages from biometrics collection or decline to use certain modalities for certain alien populations. Removing the self-imposed age restrictions is essential to combat the pervasive alien child smuggling that is occurring at an alarmingly high rate due to the misguided non-enforcement policies of the Biden administration. Lastly, in order to prevent gaps in identity management and vetting authority, it is critically important that both CBP and USCIS finalize and implement their respective biometrics rules.
Director of Regulatory Affairs and Policy
Center for Immigration Studies