Immigrant Surveillance – The DHS’ Proposal to Expand Biometric Collection to Limit Immigration

Immigrant Surveillance
Written by Taher Kameli & Chathan Vemuri

Mass surveillance and crackdown on immigration are not new phenomena in the United States and both have metastasized considerably over the last two decades in the wake of the war on terror and the broader debate over immigration to the US. Issues involving National Security Agency (NSA) spying of private telecommunications, use of older social media to place suspicion individuals and disproportionate targeting of certain minority groups have been hot button topics due in part to revelations by whistleblowers such as Edward Snowden, Julian Assange and Glenn Greenwald.

 

Immigration in particular has been a major area of focus for contemporary surveillance technologies.[1]  Using social media like Facebook to scan for personal identification information, state database records for drivers licenses and even utility bills can be done by agencies like Immigration and Customs Enforcement (ICE) to track down people engaging innocuous private activity, use their private information and arrest them for sentencing and deportation.[2] Internet activity and personal information of visa applicants, visa holders and even green card holders can be tracked to determine who to catch, mining through all manner of private data.[3] With legislation like the Patriot Act, agencies like the NSA and the FBI can gather information like phone records, computer records, credit history and banking information under the authority of National Security Letters, without any judicial oversight whatsoever.[4] And certain groups are disproportionately affected, such as Arab and Muslim immigrants who face extra scrutiny not only for potential illegal immigration but also for suspected (though unfounded) suspicions of terrorism based on the  expression of political and social thoughts that may not be approved of by the US government, infringing on the First Amendment rights of Arab and Muslim citizens.[5] This carries the potential to be used in a retributive manner by a government that demands conformity on its policy goals with any radical dissent being treated as a threat and a justification for harassment, illegal detention and/or deportation.[6]

 

Recently, a particularly insidious form of biological surveillance has come into play that could go even further into the type of information it can acquire from immigrants in order to categorize and identify them; that of biometric data.[7] On September 11, 2020, the U.S. Department of Homeland Security announced a new regulation that would expand the use of biometric data to enforce existing immigration laws.[8] Under this proposed rule, foreign nationals would have to undergo “periodic biometrics collection and continuous vetting after they enter the United States and until they become U.S. citizens.”[9] Data collected eye scans, palm prints and voice prints as well as DNA tests to establish DNA profiles and store these results for the purpose of adjudication or enforcing immigration law.[10] The expanded collection would heighten the standards for U and T visa applications in terms of the “good moral character’ requirement  and remove the presumption of it for children under 14.[11] Biometric collection would also include criminal history, national security background checks and even checking against the FBI database.[12]

 

This is purportedly to prevent identity fraud and improve identity management systems but this expanded biometrics collection would cover anyone of any age as well as even US citizens who sponsor immigrants.[13] Anyone connected to an immigrant, be it an applicant, petitioner, sponsor, beneficiary, individual filing or associated with an immigration benefit or request, and even EB-5 regional center principals, would be required to appear for biometrics collection.[14]

 

This proposed rule is the latest in a trajectory of hardline measures taken over the past 20+ years by both Republican and Democrat administrations to curb and limit immigration. In particular, this rule comes from a Trump-led government that seeks to expand the use of personal data to enforce immigration laws.[15] The precedent this proposed rule would set is disturbing to say the least. The potential expansion of biometric collections from immigrants represents an unprecedented expansion of surveillance, this time of the human body, where immigrants of all ages could be called in any time to give these biometrics, as well as US citizens linked to them.[16] Human Rights Watch had previously called out the biometrics collection of voice data by the Chinese government as having no oversight and the potential to be misused by authorities to further unchecked surveillance and crackdowns on critics of the government.[17]  One need only imagine the dangers increased biometrics collection pose in the US where the NSA’s mass surveillance capacities and activities outrank those of other nations, during the Obama administration itself.[18] Not to mention arising under the Trump administration, a government already under scrutiny for its hardline policies against immigrants.[19]

 

Immigration activists have been particularly critical of the proposed rule from the Department of Homeland Security expanding biometrics collection. Andrea Flores, the deputy director of immigration policy for the American Civil Liberties Union (ACLU) blasted the impending proposal for establishing a “massive database of genetic blueprints” that “will…make it easier for the government to surveil and target” immigrant communities.[20] Furthermore, staff attorney Saira Hussain with the Electronic Frontier Foundation noted the lack of justification for expanding biometric data collection and also expressed concerns about how long this information would be kept on file, how it would be used, whether it would be shared with other governments or agencies and even possible data breaches.[21] Furthermore, while the Trump Administration justifies the proposed rule prevent identity fraud, analysts have noted the lack of evidence for it.[22] Analyst Sarah Pierce with the U.S. Immigrant Policy Program at the Migration Policy Institute labeled the proposal as “stunningly unnecessary.” She also noted the policy’s potential to disrupt family-based applications as US nationals may be unwilling to be subject to “invasive biometrics exams to sponsor relatives for a green card.”[23]

 

This expansion is still a proposed rule and has yet to be finally approved. Yet that it is even being put forward reflects the extent to which the United States government will expand surveillance to control and restrict immigration and the immigrants who are already here. Its potential to be used against immigrant communities such as Hispanics and Arabs and Muslims, continues the increasingly dangerous measures the US government has been employing in its policies towards immigration. Whether this latest measure is approved or not by public comment and adopted by Congress is a question immigrant communities and their US sponsors will be paying close attention to.

 

Please contact the Law Offices of Kameli and Associates at info@kameli.com or give us a call at +1 (312)-233-1000 if you have questions about this rule and the concerns you may have if you are an immigrant or have family and friends trying to immigrate to the United States.

 

 

 

[1] Max Rivlin-Nadler, How Ice Uses Social Media to Surveil and Arrest Immigrants, The Intercept (Dec. 22, 2019, 7:00 AM) https://theintercept.com/2019/12/22/ice-social-media-surveillance/

[2] Id.

[3] Azadeh Shahshahani, Government Spying on Immigrants in America is Now Fair Game. What Next?, The Guardian (Feb. 12, 2018, 8:18 EST) https://www.theguardian.com/commentisfree/2018/feb/12/government-spying-immigrants-america

[4] Id.

[5] Id.

[6] Id.

[7] Michelle Hackman, U.S. Seeks to Expand Biometric Data It Collects From Immigrants, The Wall Street Journal (Sept. 2, 2020 3:14 PM ET) https://www.wsj.com/articles/u-s-seeks-to-expand-biometric-data-it-collects-from-immigrants-11599074061

[8] Ann Lee and Amy Dalal, DHS Proposal Would Expand Biometrics Collection and Use for Immigration Enforcement, Nat’l Law Review vol. 10 No. 267 (Sept. 19, 2020) https://www.natlawreview.com/article/dhs-proposal-would-expand-biometrics-collection-and-use-immigration-enforcement

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Ben Fox, Trump Administration Plans Expanded Use of Personal Data, Assoc. Press  (Sept. 1, 2020) https://apnews.com/article/b417ac4f12cb04f4805e881a91834a11

[16] Id.

[17] China: Voice Biometric Collection Threatens Privacy, Human Rights Watch (Oct. 22, 2017, 7:45 PM EDT) https://www.hrw.org/news/2017/10/22/china-voice-biometric-collection-threatens-privacy

[18] Chelsea J. Carter and Susanna Capelouto, Report: NSA, GCHQ Among Worst Surveillance Offenders, Snowden Says (last updated, Nov. 4, 2013) available at https://www.cnn.com/2013/11/03/world/europe/edward-snowden-manifesto/index.html

[19] ACLU Statement on Draft Regulation to Massively Increase Extreme Vetting of Immigrants, Am. Civ. Liberties Union, https://www.aclu.org/press-releases/aclu-statement-draft-regulation-massively-increase-extreme-vetting-immigrants (Sept. 1, 2020)

[20] Id.

[21] Ben Fox, Trump Administration Plans Expanded Use of Personal Data, Assoc. Press  (Sept. 1, 2020) https://apnews.com/article/b417ac4f12cb04f4805e881a91834a11

[22] Rachel Treisman, Trump Administration Seeking to Expand Collection of Biometric Data From Immigrants, (Sept. 1, 2020, 11:25 PM ET) available at https://www.npr.org/2020/09/01/908599539/trump-administration-seeking-to-expand-collection-of-biometric-data-from-immigra

[23] Id.