The U.S. State Department issued a press release on Friday, October 27, that revealed both the wording and placement of a “unique identifier” to be added to the passports of some, but not all, registrants. According to that press release, the language “The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(1)” will be printed on the inside back cover of new passports issued to those convicted of a sex offense involving a minor and currently required to register as a sex offender in any jurisdiction.
“It appears that the State Department press release may be in violation of federal law which requires agencies to issue regulations before making decisions such as the language and placement of a unique identifier on a registrant’s passport,” stated Executive Director Janice Bellucci. “Additional research is required before a determination can be made about whether and how to legally challenge the State Department’s press release.”
The issue of a “unique identifier” for passports was initiated in the International Megan’s Law (IML), passed by Congress and signed by the President in February 2016. The IML requires the Secretary of State to add a “unique identifier” to newly issued passports for some, but not all, registrants. In addition, the IML allows, but does not require, the Secretary of State to revoke existing passports that do not contain a “unique identifier”.
The IML was challenged in federal district court in California in February 2016. In that case, the judge denied the request of seven plaintiffs to issue a Preliminary Injunction which could have stopped implementation of the IML. The seven plaintiffs included husbands of women who live in countries where they were denied entry, businessmen and the son of a man who lives in Iraq and would be killed if identified in that country as a registrant. The judge later granted the federal government’s motion to dismiss the case.
The Administrative Procedures Act, 5 U.S.C. 551 et seq., requires agencies to issue regulations prior to implementing a new law. Normally, this process requires the issuance of proposed regulations followed by a public comment period and then issuance of a final regulation. Under extraordinary circumstances, an agency is allowed to issue a final regulation without first issuing a proposed rule and considering public comments. The State Department claimed extraordinary circumstances and issued a final regulation on September 2, 2016. The agency’s regulation, however, did not address the issue of a “unique identifier” for passports but instead focused upon the notification provisions of the IML. After the State Department issued its IML regulation, ACSOL submitted a formal petition to that regulation on September 8, 2016.
“The ACSOL board of directors will conduct a meeting on November 4 to discuss this important matter,” stated Bellucci. “The board will announce the results of its meeting no later than November 6.”