Copland and Brenner

Table of Contents

1. BCIS: Rule Allows Limited Electronic Signature and Filing
2. Coming Soon: Biometrics For All?
3. The Fly In The Ointment
4. Supreme Court Affirms Detention Of Permanent Residents In Removal Proceedings Convicted Of Aggravated Felonies

1. BCIS: Rule Allows Limited Electronic Signature and FilingOn April 29, 2003, the Department of Homeland Security (“DHS”) published an interim rule in the Federal Register, to authorize the acceptance of certain electronically filed applications by the Bureau of Citizenship and Immigration Services (“BCIS”). The rule is effective May 29, 2003. Although only two forms will be affected initially, the new rule is a significant development which stands to benefit many, but may present risks to some. We discuss the rule’s background, its omissions and potential risks below.
   
   Background: The Laws Requiring the Regulation
   The interim rule is required to satisfy provisions of the Government Paperwork Elimination Act (“GPEA,” P. L. 105-277, Title XVII), enacted on October 21, 1998. The law requires that, within five years of enactment, federal executive agencies must provide the option of submitting information or transacting with agencies electronically, and to maintain records electronically, when practicable.
   
   In addition, the Homeland Security Act, enacted on November 25, 2002, mandated that the Secretary of DHS establish an electronic tracking system for applicants to access the status of their applications. That system is already available online. In addition, the Homeland Security Act requires the DHS Secretary to conduct a study of the feasibility of online filing. To implement these provisions of the GPEA and the Homeland Security Act, the DHS was obligated to amend applicable regulations to authorize electronic filing.
   
   The GPEA defines "electronic signature" as “ . . . a method of signing an electronic message that [ ] identifies and authenticates a particular person as the source of the electronic message; and [ ] indicates such person's approval of the information contained in the electronic message.” (GPEA, section 1709(1)). Current electronic signature technologies include two types of security: cryptographic and non-cryptographic. Among the non-cryptographic types of security are digitized signatures (a graphical image of a handwritten signature) and biometrics (a person’s unique physical characteristics that can be converted into digital form.
   
   Under the GPEA, electronic records and related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form. In meeting the October 21, 2003 deadline under GPEA, federal agencies are encouraged to utilize a range of electronic signature alternatives to optimize accessibility and reduce processing time frames while reducing risks associated with fraud, error and unintended or unauthorized disclosure of private information. The Office of Management and Budget (“OMB”), part of the Executive Office of the President, is responsible for providing procedures and guidance to executive agencies to implement the GPEA.
   
   The DHS Rule
   The interim rule notes that existing regulations at 8 CFR Section 103.2(a)(2) require that all applications and petitions filed with the BCIS be signed, but that the format of the signature is not specified. Therefore, the regulatory section is being amended to provide that, “Unless otherwise specified in this chapter, an acceptable signature on an application that is being filed with the BCIS is one that is either handwritten or, for applications or petitions filed electronically as permitted by the instructions to the form, in electronic format.”
   
   For now, the rule applies to only two forms: the I-90 (Application to Replace Permanent Resident Card) and the I-765 (Application for Employment Authorization). There are several reasons for the initial limitation:
   
   - they represent “approximately 30 percent of the annual immigration benefit workload
   - they are “relatively short and easy to complete” and require “little or no supporting documentation that would have to be submitted in paper”
   - many of them are “applications for renewals replacements, or authorizations based on immigration status so that the BCIS can verify against existing data”
   
   When an applicant or petitioner seeks to electronically submit the form, a statement will be displayed advising that “by selecting the ‘Signature’ block…[he or she] is certifying under penalty of perjury that the application or petition is true and correct.” Once the applicant or petitioner selects the signature box, a confirmation number will be issued to acknowledge receipt of the form and the electronic signature.
   
   E-filing of Forms I-129, I-131, I-140, I-539 and I-821 is expected to be available by the end of Fiscal Year 2003 (i.e., September 30, 2003). Over the next three years, the BCIS plans to schedule the remaining high volume applications and petitions, including Forms I-130, I-485, I-751, N-400, N-600 and N-643 for e-filing. In total, the twelve forms contemplated for inclusion in e-filing represent at least 90 percent of the BCIS workload.
   
   First Thing, Let’s Omit All the Lawyers
   If an attorney represents an alien in an immigration matter, the attorney must generally submit Form G-28 signed by both the alien and the attorney for each application or petition being filed: “[a] notice of appearance entered in application or petition proceedings must be signed by the applicant or petitioner to authorize representation in order for the appearance to be recognized by the Service.” (8 CFR Section 292.4) By submitting Form G-28, an attorney is to be notified of any decision or other action regarding the case. In addition, an attorney must sign the application or petition being filed. In signing, an attorney generally affirms that the form being submitted is based upon all information of which he or she has knowledge.
   
   With regard to the interim rule, a Fact Sheet released by the BCIS on April 25 states that e-filing allows aliens “or their representatives to complete and submit applications at any time, from any computer with Internet access.” Notably, however, the regulation amended by the interim rule relates only to the signature of an applicant or petitioner. Nowhere in the interim rule is there any discussion as to whether or how attorneys are to provide their own electronic signatures, or what is required with regard to appearances at Application Support Centers or BCIS offices in connection with e-filing.
   
   Second Thing, Let’s Omit the Fees
   In addition to the omissions regarding attorney signatures and notices of appearance, the interim rule makes no mention of how applicable filing fees are to be handled. To date, Application Support Centers have not handled fees. Since both Forms I-90 and I-765 (except in limited circumstances) require filing fees, it appears that some sort of interaction with the BCIS, whether physical appearance or otherwise, will be required for every case in connection with payment of applicable filing fees.
   
   Problems for Problem Cases?
   The Supplementary Information to the interim rule states that “Forms I-90 and I-765 require that an alien appear before the BCIS, at which time the alien’s identity is verified. The ability to file applications electronically, therefore, both improves the BCIS’s ability to verify the eligibility of the alien for the benefit sought, and clear the alien through the appropriate databases, but does not increase the exposure of the immigration system to fraud.”
   
   Elsewhere, however, the Supplementary Information states that the two forms involve “capture of biometrics (photograph, fingerprint, and signature) at an Application Support Center where the BCIS will be able to increase process integrity by verifying the identity of the applicants.” The BCIS Fact Sheet suggests that the appearance at an Application Support Center or the BCIS for collection of the biometric signature data and/or to verify identity would occur after the application or petition is submitted.
   
   Wherever the biometric data is collected, it should be noted that many Application Support Centers are located within the same buildings that house BCIS offices as well as offices of the Bureau of Immigration and Customs Enforcement. The filing of any Form I-765 or Form I-90 is reliant upon the status claimed by the affected alien. Therefore, any person having concerns regarding the validity of his or her status or the underlying benefit sought is well advised to seek the advice of a qualified immigration attorney before appearing at a BCIS office or Application Support Center for any purpose, including e-filing.
2. Coming Soon: Biometrics For All?On April 29, in a speech to the National Press Club, DHS Secretary Tom Ridge announced that implementation of border security measures using biometrics, including fingerprint and facial-recognition technologies, will commence over the next several months. Those efforts will comprise the launch of the U.S. Visitor and Immigration Status Indication Technology (“VISIT”) system. As described on the White House web site, U.S. VISIT “will utilize a minimum of two biometric identifiers, such as photographs, fingerprints or iris scans, to build an electronic check in/check out system for people coming to the U.S. to work, study or visit. The U.S. VISIT system will replace the currently existing NSEERS program, integrate the SEVIS program, and encompass the Congressional requirements of the automated entry exit system.”
3. The Fly In The OintmentAn underlying question in evaluating the value of biometrics technologies in the immigration context is whether they will work to reduce fraud and the threat of terrorist activity. Based upon an April 30 New York Times article, the answer currently appears to be somewhere between “no” and “maybe.”
   
   The essence of the article, concerning recent reports by the General Accounting Office (“GAO”) and the Police Executive Research Forum, is that information sharing practices and abilities of federal agencies with state and local authorities continue to be woefully inadequate. Senator Charles Grassley (R-IA) is quoted as saying, “Federal bureaucracies have an institutional disease where they think they own their information. Our state and local police can’t watch out for anybody if they’re kept in the dark.” The ongoing debate regarding the balance of civil rights concerns against sharing of terrorist intelligence information suggests that this darkness may not be lifted any time soon.
   
4. Supreme Court Affirms Detention Of Permanent Residents In Removal Proceedings Convicted Of Aggravated FeloniesA recent Supreme Court decision upholds a law mandating detention for certain permanent residents during removal proceedings. The case involved a man who was a lawful permanent resident since the age of six. He was convicted of first degree burglary in 1996, and “petty theft with priors” in 1997. As a result, he was deemed an “aggravated felon” subject to mandatory detention during removal proceedings under the immigration laws as amended in 1996. The Ninth Circuit Court of Appeals held that mandatory detention of a permanent resident in removal proceedings was barred on due process grounds. The Supreme Court agreed to consider the case on appeal to resolve a conflict among the Circuit Courts.
   
   The majority opinion by Chief Justice Rehnquist states that “one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings.” The opinion also notes that the Court “has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Accordingly, the 5 – 4 decision holds that “[d]etention during removal proceedings is a constitutionally permissible part of that process.” Demore v. Kim (No. 01-1491, April 29, 2003).