The Justice Department wants the Department of Homeland Security to collect DNA from all “non-United States persons who are detained under the authority of the United States,” which would include migrants seeking asylum at the border.
According to the proposed rule published Tuesday in the Federal Register, collection of samples from those in immigration custody would be allowed under the DNA Fingerprint Act of 2005; DHS said in 2010 that DNA would not be collected from those not being detained on criminal charges.
Under the proposed rule, migrants awaiting deportation, claiming asylum at ports of entry, or committing an immigration violation with no other offenses would be subject to DNA collection.
“DHS submitted nearly 7,000 samples in FY2018. Therefore, assuming the population subject to DNA collection under the rule remains at this level, DHS would be expected to submit an additional 748,000 samples annually,” says the DOJ rule, which is now open for comments through Nov. 12. “…DHS would require approximately 20,778 additional work hours in the first year, 41,556 hours in the second year, and 62,333 hours in the third year to collect the additional samples.” The cost to DHS is estimated at “about $5.1 million in the first three years.”
“The FBI would also need to provide additional DNA-sample collection kits, at a per-kit cost of $5.38, in sufficient numbers to collect samples at the volumes described above. For example, assuming a three-year phase-in period with an additional third of the eligible population added in each successive year, the additional sample-collection kit costs to the FBI would be $1,341,413 to collect 249,333 samples in the first year, $2,682,827 to collect 498,667 samples in the second year, and $4,024,240 to collect 748,000 samples in the third year.”
The proposed rule removes 28 CFR 28.12(b)(4), which allows the DHS secretary to exempt certain people in detention from DNA-sample collection.
Under Attorney General Bill Barr’s rule, legal permanent residents are excluded as well as those in the process of obtaining residency, as well as “lawful entrants from other countries” who are “briefly held up at airports during routine processing or taken aside for secondary inspection.” There’s also an exemption for “aliens held in connection with maritime interdiction, because collecting DNA samples in maritime interdiction situations may be unnecessary and practically difficult or impossible.”
“DNA-sample collection from persons taken into or held in custody is no longer a novelty,” the rule argues. “…The established DNA-collection procedures applied to persons arrested or held on criminal charges can likewise be applied to persons apprehended for immigration violations.”
“The Department of Justice will work with DHS to develop and implement a plan for DHS to phase in that collection over a reasonable timeframe,” the rule adds.
The DOJ states that detained migrants “have likely committed crimes under the immigration law… for which they can be prosecuted,” but “regardless of whether individuals are deemed criminal arrestees or immigration detainees, the use of collected DNA samples is the same and has similar value.”
“The DNA profiles the government derives from arrestee or detainee samples amount to sanitized ‘genetic fingerprints’—they can be used to identify an individual uniquely, but they do not disclose the individual’s traits, disorders, or dispositions,” Barr’s rule continues, arguing that as in criminal cases involving U.S. citizens DNA would help ensure “that a detainee will appear for future proceedings relating to his immigration status if released.” The information could also be matched against criminal databases and stop repeat offenders, DOJ said.
“DNA technology will be consistently utilized to further public safety and the interests of justice in relation to immigration detainees,” the rule adds.
Mexico’s Ministry of Foreign Affairs said in a statement that it has expressed “concern over this measure” and reiterated the country’s “commitment to assist and protect its nationals in the United States.”
“The Foreign Ministry’s embassy and consulates in the United States will follow closely the implementation of these policies, focusing on their appropriateness and on the privacy of the information of Mexican citizens that is stored by U.S. authorities,” the MFA said.
The American Civil Liberties Union said earlier this month that DNA collection “raises serious privacy and civil liberties concerns and lacks justification, especially when DHS is already using less intrusive identification methods like fingerprinting.”
“Our DNA not only reveals deeply personal information about us, but also information about our relatives,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “This means the administration’s racist immigration policies will also implicate the rights of family members in other countries and family members here, including American citizens. This kind of mass collection alters the purpose of DNA collection from one of criminal investigation to population surveillance, which is contrary to our basic notions of freedom and autonomy.”