This story was published in partnership with the Texas Tribune.
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The Trump administration is pushing ahead with a project that could lead to the government collecting DNA from hundreds of thousands of detained immigrants, some as young as 14 years old, alarming civil rights advocates. Once fully underway, the DNA program could become the largest U.S. law enforcement effort to systemically collect genetic material from people not accused of a crime.
U.S. Customs and Border Patrol (CBP) announced in early January that it would begin a pilot project to take genetic samples from detained migrants held in Detroit, on the northern border, and Eagle Pass, Texas, on the southern.
Using cheek swab kits, Immigration and Customs Enforcement (ICE) also intends to collect DNA from those in its custody through a separate pilot project. ICE will designate a detention center where the collection will take place as part of a future project, according to a Department of Homeland Security report. Detainees who refuse to cooperate in the DNA collection can be charged with a federal misdemeanor, the report asserts.
The CBP pilot program, announced Jan. 6, is the beginning of a Justice Department plan to roll out mass DNA collection from most immigrant detainees. The department has the authority to determine whose DNA is taken and stored in an FBI database, and last October it published a proposed rule to expand collection from immigrants, saying it could identify criminal suspects.
If adopted, the plan would allow Homeland Security to collect DNA from an estimated 743,000 detained immigrants annually.
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Civil libertarians consider the proposal a gross violation of privacy because detained immigrants, including those asking to enter the United States to apply for asylum, are put in civil rather than criminal custody.
The plan “lacks justification and seeks to miscast the children and adults in immigration detention as violent criminals who pose a danger to our society,” said Vera Eidelman of the American Civil Liberties Union.
Eidelman said the government could potentially use the DNA to link immigrants to family members, who also could be targeted by law enforcement.
Democratic Reps. Veronica Escobar and Joaquin Castro, both from Texas, and Rep. Rashida Tlaib, a Democrat from Michigan, wrote to the Department of Homeland Security Jan. 21 to demand the end of the pilot program, which they argue reinforces “xenophobic” ideas about immigration.
Justice Department officials didn’t respond to requests for comment.
In its proposed rule, the department said the immigrants’ genetic information stored in the FBI database would be used only for identification and wouldn’t be enough to “disclose the individual’s traits, disorders, or dispositions.” Instead of storing whole DNA, officials say, the database would take a snapshot or “profile” of short sequences of DNA known as genetic markers. This would provide enough information to identify a person and immediate family members, but not enough to identify a distant cousin or show someone’s inherited predispositions to certain diseases.
Civil libertarians, however, say private laboratories that contract with the government often hold on to full genetic samples, not just the profiles. Those arrested and not convicted for criminal offenses and those convicted but later found innocent can appeal to have their DNA records in the FBI database destroyed. But nothing in the proposed Justice Department rule affords a similar protection to immigrant detainees.
To fight crime?
The proposed rule stems from a 2005 law that authorized DNA collection in federal detention, including immigration detention.
The Obama administration exempted asylum seekers and immigrants without criminal records from DNA collection during detention, as well as immigrants who were facing imminent deportation. The administration argued that collecting samples from an increasing number of immigration detainees would be an expensive distraction from Homeland Security’s core mission: to protect national security.
Trump administration officials said the proposed rule would better comply with the spirit of the 2005 law and aid in crime fighting. The department argues that the DNA collection is justified because even if immigrant detainees haven’t been charged or prosecuted, most committed a crime by crossing the border illegally.
But detainees can’t be lumped into a single category. Some were put into detention after asking to apply for asylum at the border. Some have overstayed visas that allowed them to enter legally. Others are undocumented and were picked up by ICE in their homes or workplaces and intend to fight deportation in court. ICE considers immigration detention a sure way to prevent people from failing to show up in court or evade deportation. But because immigration detention is not technically punishment, detainees must either hire a lawyer or find pro bono representation because they don’t have the right to the appointment of a lawyer the way people accused of a crime do.
César Cuauhtémoc García Hernández, a University of Denver law professor who’s written about the criminalization of immigrants, said forcing people to hand over their DNA without giving them access to lawyers is a double standard.
“There is either a meaningful difference between civil law and criminal law,” he said, “or there isn’t.”
The FBI’s Combined DNA Index System is a law enforcement registry that contains genetic information from about 14 million people convicted of crimes ranging from felonies to serious misdemeanors, in some states. The database also contains 4 million profiles from others arrested and charged but not convicted. State and federal law enforcement agencies submit the DNA samples to the FBI, and authorities can access the database to investigate crimes.
At the federal level, most misdemeanor offenses aren’t serious enough to qualify for DNA collection in the criminal justice system. A first-time border crossing is a misdemeanor. But the proposed rule would apply a different standard to immigrants, allowing the government to collect DNA from all detainees whether they’re prosecuted or not.
As of last April, two-thirds of people held in ICE detention had no criminal record, according to Syracuse University’s Transactional Records Access Clearinghouse, a project that analyzes ICE data. Of the one-third who had a record, TRAC found, 54 percent had been accused of what ICE considers the lowest level of crimes — including misdemeanor border entry and non-DUI traffic offenses. In 2015, most immigrants in ICE custody with criminal records had been charged with more serious offenses.
A number of studies show no link between immigration and increased crime. A 2015 study on crime rates in cities over a 40-year period, for example, showed immigration is consistently linked to a decrease in crime. Another concluded immigrants are less likely than native-born citizens to be imprisoned or jailed for crimes.
‘Creepy’ and ‘discriminatory’
By law, the Justice Department was required to solicit and review public feedback about its DNA proposal. Public Integrity viewed 300 of the more than 41,000 public comments filed with the department and found all but one opposed the rule.
“Attempting to get a DNA sample from a large population just because you might possibly find something is a huge privacy violation,” said one person who identified as an ACLU supporter.
Others called the proposal “Un-American,” “creepy,” “discriminatory,” and tantamount to “racist profiling.”
“What are we, Nazis?” asked another.
“There is no reason to believe that asylum seekers or migrant families fleeing violence, persecution, or extreme poverty — many of whom voluntarily surrender to border patrol agents at the first opportunity — present any risk to public safety,” wrote the Project on Government Oversight, a watchdog group in Washington, D.C.
Civil rights advocates believe the Justice Department’s proposal is part of an administration strategy to justify increasing scrutiny of immigrant communities.
“I don’t want to underplay how significant and unprecedented it is for the government to comprehensively collect DNA from people who’ve never been convicted of a crime,” said Harrison Rudolph, an associate at the Center on Privacy & Technology at Georgetown Law, which researches policies that threaten privacy and target vulnerable communities.
Immigration advocates also worry that the new plan could lead to discriminatory policing.
They point to a case in Canada involving DNA collection from 100 legally admitted migrant guest workers. In 2014, Ontario Provincial Police in Tillsonburg collected the DNA as part of an investigation into a sexual assault case. Many workers didn’t match the suspect’s description other than having dark skin, according to a complaint submitted by Justicia for Migrant Workers, a Canadian group that promotes migrant worker rights.
The complaint prompted provincial police to conduct an internal review of DNA practices. The review found that the search warrant was “overly broad,” but that police officers did not act out of racial prejudice. A separate civil suit accusing the police of falsely claiming that the workers’ DNA results wouldn’t be retained is still in the courts.
A serial killer
To support its argument that immigrant DNA collection will help fight crime, the Justice Department’s proposal highlights the case of Raphael Resendez-Ramirez, a notorious serial killer. Resendez-Ramirez was deported from the United States to his home in Mexico eight times before he was placed on the FBI’s “10 Most Wanted” list in connection with multiple murders.
Resendez-Ramirez eventually turned himself in to U.S. authorities in July 1999 at a border crossing in El Paso, Texas, after his family urged him to give up.
But a Justice Department internal review suggests that law enforcement could have caught Resendez-Ramirez earlier using old-fashioned fingerprint records.
A Justice Department inspector general’s report in 2000 found that a warrant had been issued for Resendez-Ramirez’s arrest after his fingerprints were retrieved from a 1998 murder scene in the United States. But when U.S. border agents apprehended Resendez-Ramirez in 1999, a series of mistakes failed to link his fingerprints to the warrant and he was instead deported to Mexico. Allegedly, according to the report, Resendez-Ramirez “quickly returned” to the United States and committed four more murders.
By focusing on a solitary foreign-born serial killer, civil liberties activists warn, the government is trying to use fear to justify a more expansive view of DNA collection — and they wonder where it will end. This latest expansion to immigrants could open the door to wider attempts to track others based on genetic information, said Saira Hussain, a lawyer with the Electronic Frontier Foundation, a San Francisco-based advocacy group concerned with surveillance and privacy.
“We’ve moved from the government using DNA on the basis of individualized suspicion or someone convicted of a crime to mass surveillance of a large population who has not been accused of a crime,” Hussain said.
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