DHS Drops Proposal to Expand Immigration-Related Biometrics Collection

The Department of Homeland Security is withdrawing a rule proposed in the waning days of the Trump administration that would have expanded the agency’s authorities to collect biometric data. 

The proposed rule, published to the Federal Register Sep. 11, would have removed age restrictions and required submission of biometrics from anyone—including U.S. citizens—associated with any immigration or naturalization benefit or request. Thousands of people commented on the controversial proposal, many of whom objected to the rule as invasive, unnecessary and unjustified.

According to another Federal Register notice, the rule is officially withdrawn as of May 10. A spokesperson for U.S. Citizenship and Immigration Services, the component to which the proposal was primarily geared, told Nextgov in an email the proposed rule was withdrawn “consistent with administration priorities to restore faith in the legal immigration system and reduce barriers and undue burdens to intending immigrants.”

“DHS intends to conduct a thorough review of the withdrawn rule’s proposed regulatory amendments in the context of the administration’s priorities and determine if future biometric rulemaking is necessary without imposing undue burdens or violating privacy and civil liberties,” the spokesperson said.

DHS still wants the “flexibility” the rule was meant to imbue in its biometric collection practices, according to the withdrawal. But the agency wants to find a way to create this flexibility without stepping on a Feb. 2 executive order aimed at restoring faith in the U.S. immigration system. While the withdrawal notice did not explicitly state the proposed rule conflicted with the executive order, it did cite a section of the directive that mandates DHS to “identify barriers that impede access to immigration benefits.” 

The top Republican on the House Homeland Security Committee released a statement on Monday criticizing the withdrawal. Rep. John Katko, R-N.Y., the committee’s ranking member, said in a statement withdrawing the rule “sends the wrong message.”

“Biometrics are an important tool to combat fraud and improve the government’s ability to verify an individual’s identity,” Katko said. 

About two months after the USCIS rule proposal was published, DHS proposed another, separate biometrics rule. This time, Customs and Border Protection was the lead agency listed. The proposal is meant to “advance the legal framework for DHS to begin a comprehensive biometric entry-exit system,” according to the Federal Register document published in November. 

The CBP rule also garnered criticism over the 30-day comment period, though some experts suggest the proposal is actually a thoughtful next step in a process to establish a biometric-entry exit system that has been in the works for over a decade. 

Earlier this year, the Biden administration reopened the public comment period for the proposed rule. Many commenters reiterated calls for the rule to be withdrawn. In light of the withdrawal of the USCIS rule, Nextgov asked CBP if it intended to withdraw its biometrics rule as well. A CBP spokesperson told Nextgov the agency “continues to adjudicate” comments received during the additional 30-day period, which closed March 12.