Comment Submitted by Nicolas M. Reischer

To Whom It May Concern, Form I-131 is usually used by adjustment of status (AOS) applicants while their application is pending, or refugees/asylees and (conditional) lawful permanent residents (CR/LPR) applying to obtain permission to travel abroad for a specific period of time (maximum of one year for refugees/asylees, and two years for CR/LPR). So far, I-131 applicants never had to submit their biometrics (formerly: fingerprints), and it was not necessary, as they were or would be taken during the AOS or the asylum process. DHS seeks to introduce a new requirement that goes far beyond a mere interpretation of the law or the publication of a tentative policy position. Such a change of policy is subject to the Administrative Procedure Act (APA) and its notice and comment requirement, as well as its requirement to give proper explanation for the necessity of the intended change of policy. (1) The notice in the Federal Register is misleading The allegedly "new" form I-131 does not contain any new information that would be required from the applicant. Hence, "Form I?131, Revision of an Existing Information Collection" is a rather misleading title for a change of instructions that presumably intends to include a biometrics requirement. (2) DHS violates the APA?s notice-and-comment requirement Including such a new requirement would most definitely be a change of policy, subject to the Administrative Procedure Act (APA), 5 USC Sec. 551, requiring the agency to publish the substantive rule not less than 30 days before its effective date (5 USC Sec. 553 (d). However, DHS does not seem to be concerned which such requirements, and immediately published the new instructions on USCIS?s website ww.uscis.gov, without indicating that these instructions were not (yet) binding. Quoting the OMB: "Concern about whether agencies are properly observing the notice-and-comment requirements of the APA has received significant attention. The courts, Congress, and other authorities have emphasized that rules which do not merely interpret existing law or announce tentative policy positions but which establish new policy positions that the agency treats as binding must comply with the APA?s notice-and-comment requirements, regardless of how they initially are labeled". Portman, Rob: Issuance of OMB?s Final Bulletin for Agency Good Guidance Practices, p. 4, 01/18/2007, published at: http://www.whitehouse.gov/omb/memora...007/m07-07.pdf. This concern should be shared by DHS and USCIS, as they similarly introduced a biometrics requirement in Form I-751, Petition to Remove Conditions on Residence, without giving appropriate notice. Indeed, DHS published a notice according to the Paperwork Reduction Act of 1995 in 71 FR 3524 of January 23, 2006 and, due to lack of comments, again in 71 FR 15469 of March 28, 2006. Both times, DHS failed to indicate which changes in policy were intended and that it would have been required to do so in accordance with the APA. Again this time, DHS fails to point out what changes of policy are intended and that it is required to publish the notice according to the APA. By the face of the current notice in the Federal Register, one would therefore not expect a material change of policy. DHS should therefore indicate in its notice what it intends to change, and why it intends to do so. (3) Violation of 5 USC Sec. 706(2)(A) and (C) This change in policy would also be (a) in excess of statutory authority and (b) arbitrary and capricious. (a) New biometrics requirement and new requirement to remain physically present after submission of I-131 application While AOS applicants need to obtain their advance parole before leaving the U.S., else their application would be deemed abandoned (8 CFR Sec. 245.2 (a)(4)(ii)), refugees/asylees and CR/LPR need only to be physically present in the U.S. at the time of filing (8 CFR Sec. 223(2)(b)). These applicants are not required to be physically present in the U.S. in order to be granted a travel document/ reentry permit. Nowhere in the INA or the regulations is a security check required to obtain a travel document/reentry permit. To the contrary, the regulations even state that: ?Effect of travel before a decision is made. Departure from the United States before a decision is made on an application for a reentry permit or refugee travel document shall not affect the application?. 8 CFR Sec. 223.2(d). However, the new instructions seem to indicate that the refugees/asylees and CR/LPR will be required to have their biometrics taken in the U.S., since the instructions specifically refer to ASC as the only place where biometrics can be taken. ASC are only located within the U.S. Therefore, these I-131 applicants would not only be subject to an additional biometrics requirement, but also forced to return to the U.S. in order to have their biometrics taken, or to stay in the U.S. after filing of the application until such time. This is a serious burden on the applicants, which is in excess of DHS/USCIS? authority, which is delimited by the INA and the APA and the corresponding regulations. Accordingly, DHS/USCIS would be in excess of statutory authority if it adopted the new I-131 instructions. (b) Failure to give any explanation for new biometrics requirement "When an agency adopts a rule that changes the agency?s prior position, the agency ?is obligated to supply a reasoned analysis for the change.? Motor Vehicle Mfgs. Ass?n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983)". Am. Federation of Labor v. Chertoff, No. C 07-04472 CRB (N.D. Cal., Oct. 10, 2007). DHS/USCIS has failed to include any analysis in its Supporting Statement. In fact, it has even failed to mention a single word about the new biometrics requirement, or that the sole purpose of the new form was to include a biometrics requirement. ? 6. The collection of this information is required to verify the status of permanent or conditional residents, refugees or asylees, or aliens abroad who apply for either a reentry permit, refugee travel document or advance parole, and if the applicant is deemed eligible, to grant him or her the benefit. (?)? USCIS 2007-0045-0003, Supporting Statement, Application for Travel Document. This is a very accurate statement regarding the I-131 form already in use. It is by no means an explanation why DHS/USCIS see a need to change the instructions of form I-131. Since the change in policy is neither acknowledged nor explained, the new instructions ? which would be included by reference into the 8 CFR (see 8 CFR 103.2(1)) ? can only be qualified as arbitrary and capricious. (4) The new biometrics requirement lacks any definitive language The instructions would not even be binding on applicants, as the new biometrics requirements have not been introduced appropriately. The language in the instructions is vague and makes the reader wonder whether applicants (and their representatives) are purposefully left in the dark about the purported new duties under the new I-131 instructions. "Re-entry permit. (?) If you are in the United States as a permanent resident or conditional permanent resident, you may apply for a reentry permit. After filing your application for Reentry Permit, USCIS will inform you in writing when to go to your local Application Support Center (ASC) for your biometrics appointment. (...) Departure from the United States before a decision is made on an application for a reentry permit does not affect the application. However, departure from the United States should not occur before your biometrics (fingerprints) have been taken". Proposed I-131 instructions. The same language has been chosen for Refugee Travel Documents. These instructions fail to indicate the risk of abandonment of the application (see e.g. form I-485 which specifically does so, or form I-131 itself, which explains that AOS applicants leaving the U.S. before obtaining their advance parole would abandon their application). Furthermore, the instructions do not include a separate biometrics fee. SUMMARY The new instructions for form I-131 only contain a possible introduction of a biometric requirement for refugees/asylees and CR/LPR seeking permission to stay abroad for a specific period of time. This change has not been clearly announced in the Federal Register, nor has the purpose for this change in policy been properly explained. Should the purpose be to increase the security checks on the applicants, DHS/USCIS should be able to explain why it cannot or does not want to retrieve the biometrics already captured during the AOS or the asylum process. Indeed, more likely than not, most of the affected I-131 applicants will already have undergone FBI security checks in the past, which will have been deemed satisfactory by USCIS, as all these applicants have obtained (conditional) lawful permanent resident status or refugee/asylee status before applying for their reentry permit/travel document. Additionally, these biometrics will only be taken at ASC within the U.S., curtailing the statutory benefits of an I-131 to be able to await adjudication while being outside of the U.S. Should the new requirement indeed only seek to advance the interest of security of the country, fingerprints taken at a U.S. Consulate or local USCIS office abroad should equally be acceptable. Finally, the biometric requirement has been included with such vague terms, that it remains unclear whether it is indeed a new requirement or just an intent to confuse applicants and their representatives. For all these reasons, the proposed I-131 form and instructions should not be adopted as published by DHS/USCIS.