Justice Department Announces Plan to Collect DNA Samples From Asylum Seekers and Other Detained Migrants

Plan to Collect DNA Samples From Asylum Seekers
Written by: Taher Kameli, Esq.

President Trump has many groups of people that he dislikes – House Democrats, “Never Trump” Republicans, and the “mainstream media”.  Besides these groups, in making a list of the persons disfavored by President Trump, asylum seekers and other detained migrants would also need to be included.  In the latest example of the Trump administration taking action against asylum seekers and other detained migrants, on October 21, the Justice Department announced plans to collect DNA samples from asylum seekers and other detained migrants.

As summarized in a “proposed rule” to be published in the Federal Register on October 22, “The Department of Justice is proposing to amend regulations that require DNA-sample collection from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States.  The amendment would strike a provision authorizing the Secretary of Homeland Security to exempt from the sample-collection requirement certain aliens from whom collection of DNA samples is not feasible because of operational exigencies or resource limitations. This will restore the Attorney General’s plenary legal authority to authorize and direct all relevant Federal agencies, including the Department of Homeland Security, to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States”.

This “proposed rule” states, “This proposed rule removes 28 CFR 28.12(b)(4), a provision that authorizes the Secretary of Homeland Security to exempt certain detained aliens from DNA-sample collection. . . . Then-Secretary of Homeland Security Janet A. Napolitano advised in a March 22, 2010, letter to then-Attorney General Eric H. Holder, Jr., that categorical DNA collection from aliens in this class was not feasible, on the grounds described in [Section] 28.12(b)(4).  However, subsequent developments have resulted in fundamental changes in the cost and ease of DNA-sample collection. DNA-sample collection from persons taken into or held in custody is no longer a novelty. Rather, pursuant to the mandate of [Section] 28.12(b), it is now carried out as a routine booking measure, parallel to fingerprinting, by Federal agencies on a government-wide basis. The established DNA-collection procedures applied to persons arrested or held on criminal charges can likewise be applied to persons apprehended for immigration violations. . . . Many considerations support the decision to repeal the [Section] 28.12(b)(4) exception. 

As an initial observation, the original rulemaking recognized that distinguishing the treatment of criminal arrestees and immigration detainees with respect to DNA identification is largely artificial, in that most immigration detainees are held on the basis of conduct that is itself criminal. . . . Regardless of whether individuals are deemed criminal arrestees or immigration detainees, the use of collected DNA samples is the same and has similar value. . . . For criminal arrestees and immigration detainees, the specific governmental interests supporting the use of the DNA technology are implicated in similar, if not identical, ways.

One such interest is simply that of identification . . . A second governmental interest is a responsibility ‘law enforcement officers bear . . . for ensuring that the custody of an arrestee does not create inordinate risks for facility staff, for the existing detainee population, and for a new detainee.’ . . . Third, DNA identification informs the decision concerning continued detention or release, in the interest of ensuring that the individual will appear for future proceedings. . . . Fourth, DNA identification informs the decision concerning continued detention or release, and necessary conditions if release is granted, in the interest of public safety. . . . Fifth, DNA identification furthers the fundamental objectives of the criminal justice system, clearing innocent persons who might otherwise be wrongly suspected or accused by identifying the actual perpetrator and helping to bring the guilty to justice”.  

This “proposed rule” does not apply to legal permanent residents, or anyone entering the United States legally.  In addition, children under the age of 14 are exempt from the “proposed rule”.

The “proposed rule” will be subject to a 20-day comment period, and immigration advocates have already denounced the “proposed rule”.  Naureen Shah, senior advocacy and policy counsel at the American Civil Liberties Union, stated, “It’s the most intimate information that you can take from someone.  It is information you can use to find their family members, to know their histories. . . . And we’re going to be taking it from people against their will”.

Whether the issue is DNA sample collection or another restriction on immigrant rights, there is no doubt that immigrants face severe challenges while the Trump administration is in office.  In these circumstances, it is critically important that immigrants have retained a qualified immigration attorney, such as theKameli Law, which has had years of experience and success in representing immigration clients, to safeguard their rights.  If you need help with any immigration matter, please contact Kameli Law, at taher@kameli.com or 312-233-1000, for representation.

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