This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
We think of the state as all-knowing, but, as the anthropologist James Scott pointed out in Seeing Like The State, Leviathan is born blind. In order to impose order, the state must first be able to see its subjects as individuals who can be tracked and categorized. Human nature tosses sand in the state’s eyes. People change names (upon birth, upon marriage, upon divorce, upon whim), occupations, addresses, incomes, and the interpersonal relationships amongst themselves. This creates a massive problem for the state: How can it even know the identities of its subjects?
In the United States, the government has traditionally relied mostly on self-reporting for citizens. Readers of this column will not be surprised to learn that we treat immigrants quite differently: we demand stacks of identifying documents, fingerprints, and biometric information as part of benefits adjudication and deportation proceedings. The Department of Homeland Security has quietly proposed to expand this system by collecting more biometric data, more frequently – including DNA! – and, in parallel, to expand this system by collecting biometric data on U.S. Citizens who interact with the immigration system. The purpose of this article is to explain what the Department of Homeland Security proposes to do, and then to speculate briefly about why.
The Department of Homeland Security proposes to expand its biometrics collection system in the following ways:
Expand the types of biometrics collected from immigrants. Currently, only fingerprint, signature, and facial recognition data are collected at biometrics. That’s not enough! DHS proposes to collect “ocular image, palm print, voice print, and DNA” from immigrants.
Expand the frequency of biometrics collection. Currently, DHS frequently reuses biometric information when an applicant applies for a subsequent benefit. (For example, if you apply for a green card, DHS collects your biometric information; later, when you apply for citizenship, DHS reuses its electronic records. No longer!) DHS’s view is that the enforcement benefits of “continuous vetting” outweigh the inconvenience and cost of repeated biometric appointments.
Expand the population of immigrants subject to biometrics collection. Currently, immigrant applicants under the age of 14 are exempt from biometrics collection. (The fingerprints and faces of children have a remarkable, and from the perspective of Leviathan, irritating propensity for change.) DHS’s view is that these challenges can be overcome, and overcoming them is worth doing for enforcement reasons.
Expand the categories of people subject to biometrics collection. Currently, U.S. citizens who interact with the immigration system are generally exempt from biometrics collection. Not anymore! DHS proposes that any U.S. Citizen who participates in an immigration application – as a petitioning spouse, say, or as a financial supporter – must report for biometrics collection, including, potentially, the aforementioned DNA collection.
DHS’s purported justification for collecting biometric data en masse from US citizens is “protecting vulnerable populations.” For example, DHS suggests that in the current system, immigrants are insufficiently protected from convicted sex offenders and domestic abusers – collecting biometric information from every single U.S. citizen involved in the immigration system would help DHS to protect vulnerable immigrants more thoroughly.
DHS’s purported justification for collecting biometrics data repeatedly from non-citizens is that “continuous immigration vetting and […] continued and subsequent evaluation” is meant “to ensure they continue to present no risks to national security or public safety subsequent to their entry.”
The real reasons for this expansion of state power are known only to the Trump Administration. But we would suggest that this new program of biometrics collection is likely to be expensive, duplicative, ineffective, and creepy. The current biometrics system already requires millions of appointments per year, supervised by an army of contractors. Adding millions more appointments will ensure that more contractors get paid, but it is unclear how retaking fingerprints will make it easier to track immigrants over time. Moreover, demanding DNA submission as part of the immigration process is enormously invasive. The Supreme Court, in Maryland v. King, ruled that routine collection of DNA is permissible for those who are “already in valid police custody for a serious offense supported by probable cause.” Subjecting millions of immigrants (and US citizens!) per year to a data collection standard meant for suspected felons strikes us as just one more example of this administration’s hostility to immigrants and their families.