In March 2020, the U.S. Department of Justice (DOJ) announced that federal Customs and Border Patrol (CBP) agents will begin collecting DNA samples for criminal investigation from immigrants designated for detention in Immigration and Customs Enforcement (ICE) facilities, including children and those legally seeking asylum.
During the Obama administration, Attorney General Eric H. Holder, Jr., granted an exemption to the DNA Fingerprint Act of 2005 for immigrant detainees. Under the law, genetic samples are required to be collected from anyone who is arrested, facing charges or convicted for a crime anywhere in the country – including non-citizens detained at the border. But at the time, Janet Napolitano, secretary of the Department of Homeland Security (DHS) – the agency that includes both ICE and CBP – successfully argued that she lacked sufficient manpower to sample the number of detainees, which fluctuated between 337,000 and 556,000 annually during the Obama administration.
Now the Trump administration is reversing that agreement, even though the number of detainees spiked to almost 860,000 last year. Attorney General William P. Barr argues that the exemption is outdated because testing is now faster and cheaper. He also worries that criminals who have had no contact with authorities except through immigration may slip through the cracks, so he wants all detainees genetically identified.
“Subjects accused of violent crimes, including homicide and sexual assault, (have been avoiding) detection even when they have been detained multiple times by CBP or (ICE),” a DOJ spokesman said.
The revised regulation allows the Federal Bureau of Investigation (FBI) access to 40,000 new genetic samples to add to its Combined DNA Index System (CODIS), the database used to scan for matches to genetic evidence found at crime scenes. But privacy advocates are concerned about constitutional violations.
“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, and autonomous society,” said Vera Eidelman, staff attorney for the Speech, Privacy, and Technology Project of the American Civil Liberties Union (ACLU).
CBP began a pilot program this past summer along the Southwestern U.S. border to collect rapid DNA samples for identifying “fraudulent family units” – those using children while crossing the border to gain special protections. But that rapid sampling checked only genetic markers that determined parentage. The new regulation would expand that to a comprehensive DNA profile, the results of which would be shared with other law enforcement agencies.
First-time offenders crossing the border without proper documentation can be charged only with a misdemeanor, even after eluding authorities. The Trump administration is trying to increase the severity of that offense while also making it a crime for non-citizens to present themselves at legal ports of entry for federally protected asylum. Critics say the moves reflects the president’s inclination to link most immigrants to criminal activity.
“(DNA collection) reinforces the xenophobic myth that undocumented immigrants are more likely to commit crimes,” noted Representatives Rashida Tlaib of Michigan and Joaquin Castro of Texas.
“We don’t have a statistical database of how many businesses immigrants create, or the ways they enrich our communities,” says Erin Murphy, professor at New York University’s School of Law. “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.”
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