Comment Submitted by Parker “Mack” Coyne

This comment is written in service of my capacities as a United States Citizen and as an American University law student. Discretionary and Procedural Language: By invoking statutorily-conferred discretion and procedural rulemaking authority, the Department appears to have evaded the Administrative Procedure Act (APA). The APA provides that federal agencies must promulgate substantive regulations with notice-and-comment rulemaking unless Congress mandated a public hearing. 5 U.S.C. § 553. Informal rulemaking can also be avoided when a federal agency seeks to retire an existing procedural regulation. James V. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (2000). Here, neither exception applies as Congress has not required a hearing and the Interim Final Rule (Rule) does not eliminate an existing procedural regulation. Instead, the Department presupposes authority to collect fees from people at its discretion without their consent, thereby altering a person's conditional right to lawful residency. Why are these invocations necessary if the Department is confident that the Rule can withstand judicial review? Rejections and Denials Framework: The rejection-denial decision framework factors described in the Rule contribute little of substance, primarily recounting a history of the pandemic and disclosing the extent to which the Department is burdened by the task of identifying invalid or missing signatures. The DC Circuit has held that burdens placed on regulated entities are not sufficient to find that a rule is not procedural. Glickman, 229 F.3d 277 (2000). Confoundingly, the Department's logic in publishing the Rule rests on the notion that when it acquires its own regulatory burdens within the scope of its authority, a Rule the purpose of which is deterring them must be procedural and thus not subject to notice-and-comment rulemaking. Alternatives Considered: The Department contradicts itself in stating that requests lacking a valid signature are able to be quickly identified without significant costs or resources, before stating that a sequence requiring immediate signature review would be burdensome to adjudicating officers. It is unclear how these notions of administrative efficiency and bureaucratic malaise are reconciled or why the alternative sequence is not standard practice, burdens notwithstanding. Why would reviewing a readily-discernable and necessary aspect of an application at low cost before evaluating applications often consisting of hundreds of pages be less efficient than other sequences? Is there a standardized sequence of review or are adjudicating officers operating ad-hoc? More importantly, it is not clear how the Department would validate the truth and correctness of a person's application without first referencing their signature and sworn declaration. In considering that Artificial Intelligence tools available to the Department are incapable of deciphering a signature from an "X" from a copied image, it is alarming to learn that this capability is not within reach. The Department employs facial recognition software capable of identifying an individual among many, 8.28 billion at the time of writing. Surely, this software or a similar university or commercial application can be adapted to the task at hand and integrated with existing computer systems. Many travelers have seen it in action at airport checkpoints and can testify it works. Conclusion: In sum, this Rule appears to be a post-Mullin v. Doe litmus test to explore the limits of the Department's discretionary authority. By evading the APA, offering inconsistent explanations for its purpose, and ruling out alternatives that are not plausibly rational as described, in drafting this Rule the Department has likely exposed arbitrary and capricious conduct that warrants judicial review. Parker Mackenzie Coyne, J.D. Candidate at American University