Skip to main content

Trump Admin Slashes Obama Era Rule That Kept Feds From Collecting Undocumented Immigrants’ DNA


The U.S. Department of Justice (DOJ) is moving forward with controversial plans to collect DNA from undocumented immigrants detained by federal immigration authorities, according to a notice of proposed rulemaking filed with the Federal Register on Monday.

The proposed rule was filed under the heading: “DNA-Sample Collection from Immigration Detainees” and would “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” by federal agents.

The law at issue here is the DNA Fingerprint Act of 2005, which created a database maintained by the Federal Bureau of Investigation (FBI) which has heretofore largely been used to store and track data collected from people arrested, charged or convicted in connection with serious crimes–such as crimes of violence or felonies.

Under current rules instituted during the Obama Administration, the Department of Homeland Security (DHS) was exempted from collecting such genetic data from non-criminal immigrants.

The Trump Administration has argued that extracting such information from undocumented immigrants is actually required under the Bush era Fingerprint Act. Monday’s proposed rulemaking change notes that Obama era guidance only purported to bar such DNA “sample-collections” in instances when they were “not feasible because of operational exigencies or resource limitations.”

Privacy advocates have long considered the law an outrage.

Opposition spanned ideology. The left-leaning American Civil Liberties Union (ACLU) and libertarian-light think tank Cato both sounded alarm bells when the measure was introduced by then-Senator Jon Kyl (R-Ariz.) and Sen. John Cornyn (R-Texas) in 2005.

“DNA is not like fingerprinting,” Jesselyn McCurdy, then-legislative counsel for the ACLU told the Washington Post. “It contains genetic information and information about diseases.”

“It’s a classic mission-creep situation,” Cato’s onetime fellow Jim Harper said. “These guys are playing a great law and order game . . . and in the process creating a database that could be converted into something quite dangerous.”

Both parties ultimately dismissed those privacy concerns.

In late 2005, the U.S. Senate passed the bill–part of the 2005 Violence Against Women Act and 2005 DOJ Reauthorization Act–unanimously. And the Trump administration has made certain to point out that every Democratic Party senator voted for the controversial DNA collection requirement by describing the law as “bipartisan.”

According to a press release issued by the DOJ, the rule change “will ensure that all federal agencies—including DHS—are in full compliance with the bipartisan DNA Fingerprint Act, which was a component of a larger legislative package that passed the House of Representatives by an overwhelming vote of 415 to four and the Senate by Unanimous Consent.”

The Trump Administration anticipated the change by initiating a pilot program for the collection of DNA from undocumented immigrants detained by DHS in order to identify so-called “fraudulent family units“–adults thought to be gaming U.S. asylum laws by claiming family relations with minor immigrants where none may actually exist.

Deputy Attorney General Jeffrey A. Rosen hailed the move:

The proposed rule change would help to save lives and bring criminals to justice by restoring the authority of the Attorney General to authorize and direct the collection of DNA from non-United States persons detained at the border and the interior by DHS, with the ultimate goal of reducing victimization of innocent citizens. Today’s proposed rule change is a lawful exercise of the Attorney General’s authority, provided by Congress, to collect DNA samples from non-United States persons who are properly detained under the authority of the United States.

The ACLU, however, re-lodged their privacy-based complaints.

Vera Eidelman is a staff lawyer with the ACLU’s Speech, Privacy, and Technology Project. In recent comments to the New York Times, she said: “That kind of mass collection alters the purpose of DNA collection from one of criminal investigation basically to population surveillance, which is basically contrary to our basic notions of a free, trusting, autonomous society.”

[image via JIM WATSON/AFP/Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime: