The Department of Homeland Security is inching toward implementation of a decades-old law directing it to collect DNA from the undocumented immigrants arrested by its officers.
U.S. Immigration and Customs Enforcement has started a small pilot project in Dallas to collect DNA samples of undocumented immigrants who are arrested. And Customs and Border Protection started another pilot program months ago.
It’s a far cry from the robust implementation Congress envisioned when the DNA Fingerprint Act became law in 2005. And the moves, which may seem small, come after years of pushback from senior officials in the department, who argued the requirement was cumbersome and unhelpful.
DHS’ steps toward implementation of the law come after harsh criticism from whistleblowers and a government oversight office, and after a bit of arm-twisting from the Justice Department. The move will concern civil liberties advocates, who have long said a massive database of immigrants’ DNA could be ripe for abuse.
On May 1, ICE’s Enforcement and Removal Operations arm began the pilot program as ICE ramps up to fully implement a Department of Justice rule authorizing it to gather DNA under the 2005 law. They are using DNA collection kits that the FBI have given them, according to a statement, and will upload data of those arrested into a national DNA system to see whether they match with crimes that are in the system. ICE had previously received a 30 day extension to comply with the regulation, and it lapsed earlier this month.
As with fingerprints, ICE said it will not collect DNA samples from anyone age 13 or younger.
ICE has long resisted collecting DNA samples from people they arrest. One former DHS official called it “a very burdensome activity” that has not been adequately funded.
The former official said that the benefits for ICE aren’t as concrete as they are for DOJ, which handles prosecutions.
“It’s just one of those mandates that it looks good on paper and there’s a net benefit to them, but all the work gets done by ICE and there’s not a big upside for them,” the former official said.
Customs and Border Protection, the DHS component that includes Border Patrol, offered less detail on its current approach to implementation. When reached for comment on this story, a spokesperson for DHS headquarters flagged a Jan. 6 news release from the agency describing “a limited, small-scale pilot program.”
After the law passed, as part of a larger legislative package that had broad bipartisan support, it was soon put on ice. In 2010, then-Attorney General Eric Holder granted a waiver to then-DHS Sec. Janet Napolitano exempting her department from most DNA collection requirements. Napolitano had argued that since the law pushed for DNA collection on such a huge number of people, it would “severely strain the resources of the agency to perform its broader mission.”
The status quo persisted well into the Trump administration. But DHS drew flack for it. Last August, the Office of Special Counsel — a government watchdog office that focuses on whistleblowers and the federal workforce — sent a letter to President Donald Trump lambasting the department for not having implemented the law.
The letter cited whistleblower complaints about the department’s slow approach. Two months later, the Justice Department proposed a rule requiring the department to more fully implement the law — noting in its announcement that the FBI had made it easier for other agencies to use its system to process the DNA samples.
The rule was finalized earlier this year, and the department extended DHS’ deadline for compliance during the pandemic. That extension expired earlier this month.
That long resistance to implementation from DHS generated concerns in some corners of the Trump administration. And despite the incremental shifts from ICE and CBP, those concerns persist.
“There are people, including at the leadership levels of DHS, CBP and ICE, who are determined to prevent the DNA Fingerprint Act from ever going into effect,” one senior administration official told POLITICO. “These individuals are willing to continue to ignore the law and put the safety of the American people at risk. The Obama administration is alive and well at DHS.”
But others cheer the move. Henry Kerner, the special counsel who sent the letter about implementation, said in a statement that the moves are welcome.
“I am pleased to see that CBP has taken steps to initiate a DNA collection pilot program,” he said. “This issue only came to light because of the diligence of whistleblowers who worked with OSC to ensure the law, as written, is followed. After OSC alerted the president, Congress and CBP leadership, the Department of Justice took action mandating collection of DNA samples from criminal detainees. This law will allow agencies to work with the FBI to get criminals off the streets and bring justice to victims of violent crime.”
But others will find it troubling. Groups like the American Civil Liberties Union have opposed the 2005 law since its inception, calling it a “radical departure from the original intent and purpose of the forensic DNA databanking system.”
More recently, Saira Hussain of the Electronic Frontier Foundation, a left-leaning group that advocates for digital rights, called the DHS move to begin taking DNA samples a dangerous effort “to weaponize biometrics in order to surveil vulnerable communities.”