The Trump administration has finalized a new policy Friday that paves the way for Homeland Security to collect DNA from all illegal immigrants the department arrests, fulfilling the terms of a 2005 law that the government has been evading for years.
Under the new rules, posted online Friday and slated to be published in the Federal Register this week, Attorney General William P. Barr can cancel an Obama-era waiver and order collection of DNA by agents and officers in both U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).
It was supposed to be already happening, but in 2010 then-Attorney General Eric H. Holder Jr. and then-Homeland Security Secretary Janet Napolitano worked out a waiver. It was supposed to be temporary, to give Ms. Napolitano’s agencies time to figure out the collection, but it was renewed each year without any debate.
The situation was exposed by whistle-blowers, who told the U.S. Office of Special Counsel about it. In a report last year, that office said serious criminal suspects had avoided responsibility for crimes, including homicide and sexual assault, for years solely because their DNA wasn’t being collected by CBP or ICE.
Prodded by that report, the Trump administration took steps to require collection, and Friday’s rule is the final answer.
Homeland Security has been preparing for the final policy for months, and began a pilot program in January to test out collection.
ICE and CBP say the DNA isn’t likely to be processed fast enough to spot targets during the short time they are in custody before they are deported or released, but the agencies said it might generate investigative leads for other federal law enforcement.
Those under age 14 won’t have DNA taken, nor will those who show up at the border in need of immediate medical attention or with a mental impairment, CBP says.
Once ICE or CBP collects DNA, it will be sent to the FBI for processing and entry into the FBI’s main DNA database.
Refusing to give DNA is a misdemeanor offense.
Liberal Democrats on Capitol Hill have complained about the DNA policy, calling it “a serious human rights issue.”
“This policy reinforces the xenophobic myth that undocumented immigrants are more likely top commit crimes than U.S.-born individuals,” three lawmakers, led by Rep. Rashida Tlaib, Michigan Democrat, wrote in a letter to Homeland Security earlier this year.
The lawmakers didn’t address the 2005 law requiring DNA collection, written by their branch of government, instead calling on Homeland Security to end the collection on its own.
Homeland Security has for years collected DNA from those it detained on criminal charges, including those charged with jumping the border. But that didn’t include those being detained for investigation of immigration claims such as illegal presence or claiming asylum, which are often part of civil law.
The 2005 law, however, applies to all persons in custody, the Trump administration says.
Based on last year’s numbers, the new rule would have meant nearly 750,000 more DNA samples would be submitted annually, the Justice Department said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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