Senior officials at the Department of Homeland Security said Wednesday that the Justice Department was developing a federal regulation that would give immigration officers the authority to collect DNA in detention facilities across the country that are currently holding more than 40,000 people.
The move would funnel thousands of new records to the FBI, whose extensive DNA database has been limited mainly to genetic markers collected from people who have been arrested, charged or convicted in connection with serious crimes.
There have long been calls to collect immigrant DNA records to help identify criminals who have previously been in immigration custody but may not otherwise be known to authorities. Congress passed a law authorizing a broad collection of DNA data in 2005, but at the time an exemption was put in place to protect immigrants.
A homeland security official said in a call with reporters Wednesday that the exemption was outdated, and that it was time to eliminate it.
“The DNA collection, including of immigration detainees, is something that is legally required,” said the official, who spoke on condition of anonymity in order to discuss the new proposal.
Immigrant and privacy advocates said the move raised privacy concerns for an already vulnerable population that could face profiling or discrimination as a result of their personal data being shared among law enforcement authorities. The new rules would allow the government to collect DNA from children, as well as those who seek asylum at legal ports of entry and have not broken the law.
They warned that U.S. citizens, who are sometimes accidentally booked into immigration custody, could also be forced to hand over their private genetic information.
“That kind of mass collection alters the purpose of DNA collection from one of criminal investigation basically to population surveillance, which is basically contrary to our basic notions of a free, trusting, autonomous society,” said Vera Eidelman, a staff lawyer with the American Civil Liberties Union’s Speech, Privacy and Technology Project.
She said that because genetic material carries family connections, the data collection would have implications not only for those in immigration custody but also their family members who might be U.S. citizens or legal residents.
Homeland security officials said the new initiative was permitted under the DNA Fingerprint Act of 2005. Until now, immigrant detainees have been exempt from the law, they said, because of an agreement between Eric H. Holder Jr. and Janet Napolitano, who served as attorney general and homeland security secretary, respectively, under President Barack Obama.
A letter in August to the White House from the Office of Special Counsel cited an official whistleblower complaint alleging that immigration agencies had failed to carry out their full obligations under the law to collect DNA. It suggested that immigration authorities such as Customs and Border Protection already were carrying out limited DNA collections.
“The agency’s noncompliance with the law has allowed subjects subsequently accused of violent crimes, including homicides and sexual assault, to elude detection even when detained multiple times by CBP and Immigration and Customs Enforcement (ICE),” said the letter, signed by Henry J. Kerner, the special counsel. “This is an unacceptable dereliction of the agency’s law enforcement mandate.”
The officials said the proposed rule was inspired partly by a pilot program conducted this summer along the southwestern border, in which ICE agents used rapid DNA sampling technology to identify “fraudulent family units” — adults who were using children disguised as their own to exploit special protections for families with immigrant children.
The new program would differ from the pilot in that it would provide a comprehensive DNA profile of individuals who are tested, as opposed to the more narrow test that was used only to determine parentage. And unlike the testing under the pilot program, the results would be shared with other law enforcement agencies.
After the DNA samples are taken, under the forthcoming regulation, they would be entered into the FBI’s highly regulated national DNA database. Known as CODIS, the Combined DNA Index System is used by state and law enforcement authorities to help identify criminal suspects. It is advertised on the bureau’s website as a “tool for linking violent crimes.”
Trump administration officials did not provide a timeline for the rollout of the regulation but said a working group was meeting weekly to introduce it as soon as possible.
In supplying the FBI and other law enforcement with the DNA of immigration detainees, federal authorities are jumping into an ethical debate about the use of DNA in criminal investigations. While such sampling has been crucial in securing thousands of prosecutions over the past several decades, it has also generated controversy because of the potential for abuse.
The move comes amid a wider Trump administration push to criminalize unauthorized border crossings, even in some cases when people enter the country lawfully, such as those who present themselves at legal ports of entry to seek asylum.
Regarding that group, which is considered protected under federal asylum law, a senior homeland security official said Wednesday, “There is a criminal aspect to that population.”
Crossing the border without documents and attempting to elude border authorities is a misdemeanor for first offenders.
President Donald Trump has often sought to link all immigrants, regardless of their legal status, to crime despite a significant body of research that has shown that immigrants are less likely to commit crimes than native-born citizens.
“We don’t have a statistical database of how many businesses immigrants create, or the ways they enrich our communities,” said Erin Murphy, a professor at New York University School of Law, who wrote a book documenting the misuse of forensic evidence in criminal investigations.
“But if the government has a way to say, ‘This is the number of immigrants we’ve linked to crimes,’ and this is something we already see anecdotally, we might lose sight of all the positive benefits, and that number we get might reflect something more about humanity than about immigrants as a class.”
The homeland security officials who discussed the new initiative said immigration agents would be trained to properly collect the data while respecting immigrants’ privacy rights. They said the Department of Homeland Security has “significant authority, particularly in the border context,” to collect DNA.
Though the constitutional right to privacy has been found under numerous Supreme Court decisions to apply to everyone within the United States, regardless of their immigration status, a much more restrictive interpretation of the Fourth Amendment has been applied within the 100-mile zone nearest the border, where suspicionless searches are allowed, even of U.S. citizens.
This article originally appeared in
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