Collection and Use of Biometrics by U.S. Citizenship and Immigration Services; Withdrawal

CourtU.s. Citizenship And Immigration Services
Citation86 FR 24750
Record Number2021-09671
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
Proposed Rules Federal Register
24750
Vol. 86, No. 88
Monday, May 10, 2021
DEPARTMENT OF HOMELAND
SECURITY
U.S. Citizenship and Immigration
Services
8 CFR Parts 1, 103, 204, 207, 208, 209,
210, 212, 214, 215, 216, 235, 236, 240,
244, 245, 245a, 264, 287, 316, 333 and
335
[CIS No. 2644–19; DHS Docket No. USCIS–
2019–0007]
RIN 1615–AC14
Collection and Use of Biometrics by
U.S. Citizenship and Immigration
Services; Withdrawal
AGENCY
: U.S. Citizenship and
Immigration Services, DHS.
ACTION
: Proposed rule; withdrawal.
SUMMARY
: The U.S. Department of
Homeland Security (DHS) is
withdrawing a proposed rule that
published on September 11, 2020. The
notice of proposed rulemaking proposed
to amend DHS regulations concerning
the use and collection of biometrics in
the enforcement and administration of
immigration laws by U.S. Citizenship
and Immigration Services, U.S. Customs
and Border Protection, and U.S.
Immigration and Customs Enforcement.
DATES
: DHS withdraws the proposed
rule as of May 10, 2021.
ADDRESSES
: The docket for this
withdrawn proposed rule is available at
http://www.regulations.gov. Please
search for docket number USCIS–2019–
0007.
FOR FURTHER INFORMATION CONTACT
:
Steven Kvortek, Security and Public
Safety Division Acting Chief, Office of
Policy and Strategy, U.S. Citizenship
and Immigration Services, DHS, 5900
Capital Gateway Drive, Camp Springs,
MD 20746; telephone 240–721–3000
(this is not a toll-free number).
Individuals with hearing or speech
impairments may access the telephone
numbers above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION
: On
September 11, 2020, DHS published a
notice of proposed rulemaking (NPRM
or proposed rule) titled ‘‘Collection and
Use of Biometrics by U.S. Citizenship
and Immigration Services’’ in the
Federal Register (85 FR 56338). This
rule proposed to amend DHS
regulations concerning the use and
collection of biometrics in the
enforcement and administration of
immigration laws by U.S. Citizenship
and Immigration Services (USCIS), U.S.
Customs and Border Protection (CBP),
and U.S. Immigration and Customs
Enforcement (ICE). DHS is withdrawing
the September 11, 2020, NPRM for a
number of reasons.
In response to the NPRM, DHS
received 5,147 comments during the 30-
day public comment period, and 192
comments on the rule’s information
collection requirements before the
comment period ended. Commenters
consisted of individuals, advocacy
groups, legal service providers,
professional associations, State or local
governments, and social organizations.
The majority of commenters expressed
general opposition to the rule,
mentioning immigration policy
concerns, general privacy concerns, and
economic concerns (both to individuals
and communities). Many commenters
wrote that the rule was unnecessary,
offensive, an invasion of privacy, would
infringe on freedoms, and violate the
respect, privacy rights, and civil
liberties of U.S. citizens, legal
immigrants, noncitizens, victims of
domestic violence, other vulnerable
parties, and children. Many commenters
stated that the rule was overly broad,
highly invasive, and would impose
excessive monetary costs on applicants
and result in administrative delays in
adjudicating immigration benefit
requests that are already subjected to
backlogs and long waits.
Executive Order 14012, ‘‘Restoring
Faith in Our Legal Immigration Systems
and Strengthening Integration and
Inclusion Efforts for New Americans,’’
in section 3(a)(i), instructs the Secretary
of Homeland Security to identify
barriers that impede access to
immigration benefits. 86 FR 8277, (Feb.
5, 2021) (‘‘E.O. 14012’’). Having
reviewed the public comments received
in response to the NPRM in light of
Executive Order 14012, DHS has
decided to withdraw the NPRM. The
proposed rule was 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.
DHS still supports the goals of the
NPRM to have flexibility in its
immigration benefit administration
biometrics collection practices and
policies and enhance the use of
biometrics for identity verification and
management but not in a way that
conflicts with Executive Order 14012.
DHS, USCIS, CBP, and ICE remain
committed to national security, identity
management, fraud prevention and
program integrity, and will continue to
require the submission of biometrics
where appropriate. See, e.g., INA
section 333 and 335 (requiring
submission of photographs and a
personal investigation before an
application for naturalization may be
approved); INA section 264(a) (directing
the collection of fingerprints for the
purpose of registering aliens); 8 U.S.C.
1732(b)(1) (requiring that alien visas and
other travel and entry documents use
biometric identifiers); 8 U.S.C. 1365a–
1365b (requiring creation of a biometric
data system for national security
purposes). DHS may engage in a future
rulemaking to enhance our biometrics
requirements while not hindering access
to the immigration system and
protecting privacy and civil liberties.
However, commenters suggested that
the breadth of the biometrics
submission requirements that were
proposed in the proposed rule are more
than what is necessary to meet the
requirements of the adjudication of
immigration and naturalization benefits.
DHS has considered the commenters
concerns, and believe some of them may
be justified and require additional
deliberation. Accordingly, DHS is
withdrawing the NPRM and will
analyze the entirety of the NPRM in the
context of the directive in E.O. 14012
and what changes may be appropriate
and consistent with DHS’s needs,
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24751
Federal Register / Vol. 86, No. 88 / Monday, May 10, 2021 / Proposed Rules
1
Comments may be viewed at the Federal Docket
Management System (FDMS) at http://
www.regulations.gov, docket number USCIS–2019–
0024.
policies, and applicable law. In the
meantime, DHS’ current biometrics
collection practices and policies are
sufficient to meet the statutory and
regulatory requirements for document
production and the vetting of any
applicant, petitioner, sponsor,
beneficiary, or individual filing or
associated with an immigration benefit
or request, including United States
citizens.
Authority
As stated in the NPRM, DHS has
general and specific statutory authority
to collect or require submission of
biometrics from applicants, co-
applicants, petitioners requestors,
derivatives, beneficiaries and others
directly associated with a request for
immigration benefits; and for purposes
incident to apprehending, arresting,
processing, and care and custody of
aliens. 85 FR 56347. DHS is
withdrawing the NPRM using those
same authorities.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
[FR Doc. 2021–09671 Filed 5–7–21; 8:45 am]
BILLING CODE 9111–97–P
DEPARTMENT OF HOMELAND
SECURITY
U.S. Citizenship and Immigration
Services
8 CFR Parts 106, 241, and 274a
[CIS No. 2653–19; DHS Docket No. USCIS–
2019–0024]
RIN 1615–AC40
Employment Authorization for Certain
Classes of Aliens With Final Orders of
Removal; Withdrawal
AGENCY
: U.S. Citizenship and
Immigration Services, DHS.
ACTION
: Proposed rule; withdrawal.
SUMMARY
: The U.S. Department of
Homeland Security (DHS) is
withdrawing a notice of proposed
rulemaking (NPRM) that published on
November 19, 2020. The NPRM
proposed to revise DHS regulations
governing employment authorization for
individuals who have a final order of
removal and are released from DHS
custody on an order of supervision. The
NPRM also proposed to amend DHS
regulations to clearly indicate the
employment eligibility of individuals
who have been granted deferral of
removal based on the United States’
obligations under the Convention
Against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment (CAT).
DATES
: DHS withdraws the NPRM as of
May 10, 2021.
ADDRESSES
: The docket for this
withdrawn proposed rule is available at
http://www.regulations.gov. Please
search for docket number USCIS–2019–
0024.
FOR FURTHER INFORMATION CONTACT
:
Steven P. Kvortek, Acting Chief,
Security and Public Safety Division,
Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
DHS, 5900 Capital Gateway Drive, Camp
Springs, MD 20746; telephone 240–721–
3000 (this is not a toll-free number).
Individuals with hearing or speech
impairments may access the telephone
numbers above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION
: On
November 19, 2020, DHS published an
NPRM titled ‘‘Employment
Authorization for Certain Classes of
Aliens With Final Orders of Removal.’’
(85 FR 74196). This NPRM proposed to
eliminate employment authorization
under 8 CFR 274a.12(c)(18) for
individuals who have a final order of
removal and are released on an order of
supervision with a narrow exception.
DHS also proposed to amend its
regulations to clearly indicate that
individuals who have been granted CAT
deferral of removal would be
employment authorized based on their
grant of CAT deferral of removal.
In response to the NPRM, DHS
received more than 302 comments
during the 30-day public comment
period. Nearly 98 percent of
commenters opposed the proposed rule
with several commenters specifically
requesting that DHS withdraw the
NPRM.
1
Less than 2 percent expressed
support for the rule with such
commenters generally supporting the
rule because they believed it would
deter illegal immigration and protect
U.S. workers. The commenters who
opposed the NPRM argued that it would
significantly limit the ability of
individuals who have a final order of
removal and are released on an order of
supervision to legally work, be self-
sufficient, and support their families,
which may include U.S. citizen children
and lawful permanent resident spouses
or partners. Several commenters also
noted the proposed rule would impose
exorbitant costs and burdens on U.S.
employers related to labor turnover and
the proposed E-Verify requirement.
Various state and local agencies,
including Attorneys General from 15
states, also opposed the rule on the basis
it would decrease tax revenue, deny
states various revenue streams, and
increase costs related to state-funded
public benefit programs. Many
commenters also disagreed with the
NPRM’s assertion that the proposed
changes would incentivize individuals
with final orders of removal to leave the
United States. They argued that the
majority of individuals who have a final
order of removal and are released on an
order of supervision are in the United
States with DHS’s acknowledgment, as
reflected by their release on an order of
supervision, and that DHS’s inability to
remove them primarily stems not from
inaction on the individual’s part but due
to the unwillingness of foreign
governments to issue them travel
documents and cooperate in their
repatriation.
The NPRM stemmed from two
executive orders issued by President
Trump, which have been revoked since
the publication of the NPRM. DHS
initiated the regulatory action pursuant
to Executive Order 13768, ‘‘Enhancing
Public Safety in the Interior of the
United States’’ (Jan. 24, 2017) and
Executive Order 13788, ‘‘Buy American
and Hire American’’ (Apr. 18, 2017).
These executive orders directed DHS to
revise or rescind any regulations
inconsistent with these orders. DHS
issued the NPRM after determining that
the current regulations at 8 CFR
274a.12(c)(18) could be inconsistent
with the above-mentioned executive
orders.
On January 20, 2021, President Biden
issued Executive Order 13993,
‘‘Revision of Civil Immigration
Enforcement Policies and Priorities,’’
which revoked Executive Order 13768.
Further, on January 25, 2021, President
Biden issued Executive Order 14005,
‘‘Ensuring the Future Is Made in All of
America by All of America’s Workers,’’
which revoked Executive Order 13788.
Executive Orders 13993 and 14005
directed agencies to review, revise, or
rescind any agency actions or guidance
inconsistent with the executive orders.
Having reviewed the NPRM and the
public comments in light of Executive
Orders 13993 and 14005, DHS has
decided to withdraw the NPRM. The
original bases and rationale for
promulgating the NPRM no longer align
with the current Administration’s
immigration enforcement priorities.
This Administration is focused on
protecting the interests of American
workers by ensuring the ‘‘[Federal
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