DOJ Finalizes Rule to Collect DNA From Illegal Immigrants Detained in Federal Custody

March 6, 2020 Updated: March 6, 2020

The Justice Department (DOJ) announced on Friday that it is finalizing a rule to collect DNA samples from illegal immigrants who are in federal custody.

The DOJ issued a final rule that would authorize the Department of Homeland Security (DHS) to collect DNA samples from immigrants who enter the country illegally and are being detained in federal custody. The rule will allow the department to comply fully with a 2005 law, the DNA Fingerprint Act. The Act requires a federal agency to “collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States.”

Until now, non-U.S. persons have been exempt from the sample collection following an agreement in 2010 between two Obama administration officials, then-Attorney General Eric H. Holder Jr. and then-DHS Secretary security secretary, Janet Napolitano, in 2010.

However, that agreement was made to buy time to implement the necessary procedures. But with respect to criminal arrestees, Secretary Napolitano clearly stated that she “intend[ed] to phase-in implementation [of DNA collection] over the next year.”

In July 2010, then-Attorney General Holder similarly stressed the importance of expeditious compliance with criminal DNA collection requirements, and noted exceptions were granted “at the present time” because of “operational exigencies and resource limitations.”

The Office of Special Counsel reported to President Donald Trump and Congress in a letter (pdf) last August that Customs and Border Protection (CBP) had failed to comply with the law and collect DNA samples while citing allegations from a whistleblower complaint.

“CBP’s noncompliance with the law has allowed criminal detainees to walk free. Given the significant public safety and law enforcement implications at issue, I urge CBP to immediately reconsider its position and initiate DNA collection from criminal detainees,” Special Counsel Henry J. Kerner said in a statement at the time.

Following that, in October last year, DOJ issued a notice of proposed rulemaking to authorize and direct the DHS to start collecting samples of illegal immigrants. The DOJ and DHS have also worked together to conduct a pilot program for the collection, the statement said. In January, CBP said it had initiated a small-scale pilot program to collect DNA from “certain individuals” in custody in two locations in order “to assess the operational impact of proposed regulatory changes.” The program will last 90 days.

“Today’s rule assists federal agencies in implementing longstanding aspects of our immigration laws as passed by bipartisan majorities of Congress,” Deputy Attorney General Jeffrey A. Rosen said in a statement. He added that the rule “will help to enforce federal law with the use of science.”

The DOJ said the DNA samples collected by DHS from the immigrants would be entered into the FBI’s Combined DNA Index System (CODIS).

“The FBI will provide DHS with the DNA collection kits, analyze the samples, and ensure that law enforcement agencies use the results in accordance with the FBI’s stringent CODIS privacy requirements,” the department said.

According to CBP data, border patrol officers apprehended or deemed inadmissible over 1.14 million illegal immigrants at the border during the 2019 fiscal year. Between October 2018 and February 2019, officers encountered over 282,000 people who were arrested or deemed inadmissible.

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