Immigration advocates sounded alarm over the Department of Homeland Security’s new proposed rule to collect DNA samples from migrants in government custody, expressing grave concern over long-term privacy implications.
“The government doesn’t have a very good track record of collecting and protecting the genetic material of marginalized populations, including foreign nationals and black and brown people,” Andrew Free, a Nashville-based immigration and civil rights lawyer, told CQ Roll Call. “In the absence of a limiting principle, I just really worry about the abuses.”
The proposed rule would lay out the framework for a “whole government approach” to collecting genetic samples from migrant detainees, senior DHS officials told reporters Wednesday. The officials did not say whom the DNA collection program, which would be run in concert with the Justice Department, would specifically target or how it would be implemented. Those details and any operational hurdles are being ironed out by the working groups that include policy experts, they said.
All noncitizens already must submit fingerprints upon U.S. entry, but officials said the expanded DNA collection program would “enhance” the ability of DHS and other law enforcement agencies to “further identify” people who have illegally entered the country.
Immigrations and Customs Enforcement and Customs and Border Protection agents would be trained to collect the swabs, and it was not immediately clear that migrants would have the option to opt out.
Under an existing pilot program called Operation Double Helix, DHS officials may request DNA samples from a minor and an adult arriving together at the southern border if the agents suspect the pair are not actually related. The Trump administration rolled out the rapid DNA test program in response to the rising number of monthly border apprehensions in the spring and has asserted that it would deter migrant adults from using children to temporarily stay in the United States.
In June, acting Homeland Security Secretary Kevin McAleenan told lawmakers that of the 109 families tested at the southern border under the DNA pilot program, 17 failed the test or admitted they were not the child’s parent — a rate of 15 percent.
On Wednesday, DHS officials distinguished that rapid DNA testing pilot from the new proposed regulation, which would presumably go through a routine 60-day public comment procedure. The new, expanded DNA collection would chart “a completely different path forward,” officials said. It would not be used solely to substantiate claims of family, and it would entail a “full-scope DNA profile” that would be submitted to a nationwide FBI database that contains DNA samples of people charged with crimes.
DHS officials said the authority for the new initiative comes from the DNA Fingerprint Act of 2005, which allows federal agencies to collect DNA samples from individuals in their custody, regardless of citizenship status. However, regulations that came up under previous administrations carved out exceptions for certain immigrants in DHS custody. The new rule would scrap those exceptions.
On a call with reporters Wednesday, DHS officials, who spoke on condition of anonymity, did not provide details about how this forthcoming initiative would affect people who crossed the border without authorization to seek asylum, or those who had not been otherwise charged with a crime. When asked about the long-term implications of pooling DNA information about vulnerable people into a criminal database, officials said they would comply with appropriate privacy standards, adding, “There is a criminal aspect to that population.”
Several experts on Wednesday questioned the Trump administration’s underlying motive for implementing the DNA collection procedure to more migrants. They worry it may cause more family separations at the border.
“Given their horrific history of separating children and delaying family reunification and their efforts to prolong detention, it’s not a surprise that they are trying to use something like this to cause further hardship in family separations,” said Matt Adams, legal director for the Northwest Immigrant Rights Project, an organization that provides legal services to immigrants in Washington State. “You have to assume that any information they are given is going to be used for enforcement purposes.”
Jenn Budd, a former CBP official-turned-immigration activist, told CQ Roll Call that the collection of such information may help the federal government create a map of an entire immigrant network that may used for future enforcement.
“Who that’s going to affect very heavily, of course, are people of color. And who that’s going to affect is people here on the border,” Budd said.
Free, the immigration and civil rights lawyer, also cautioned about the potential of this kind of data collection technology to expand beyond its original intent — and be employed for other populations, including U.S. citizens.
“As we know, marginalized populations in border areas are testing grounds for new technologies,” he said. “The question that Americans should be asking is if they’re OK with a future in which if they’re arrested for a civil offense — like a traffic ticket, not paying child support, or a codes violation — that by the theory that is being advanced, the government can mass collect their genetic information.”