Week 6: Justice Department publishes proposed DNA collection rules
Immigration news, in context.
This is the sixth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
The Big Picture
Changes to exemptions for immigration detainees
The News: The Department of Justice published a proposed rule in the Federal Register that, in a roundabout way, could permit the collection and storage of DNA data on the vast majority of migrants and immigrants who pass through federal custody.
What’s happening?
Like much in immigration policy, the mechanism here is a bit more complicated than the administration merely issuing a directive. Essentially, the rule would let the Attorney General reverse existing government policy by eliminating an exception to a federal regulation; this regulation implements a 2005 law, that is itself a modification of a 2000 law which built on a system created by statute in 1994.
We’ll get into the particulars of the history below but, as of 2005, the federal government has been directed to take a genetic profile of “individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States,” (8 U.S.C. 40702(a)(1)(A)) and store them in an existing national criminal justice database called the Combined DNA Index System (CODIS). In this context, non-U.S. persons means anyone who isn’t a U.S. citizen, national, or legal permanent resident. CODIS receives DNA data from criminal investigations around the country, and the point of collecting DNA samples from federal detainees is to run it against DNA from these investigations.
To grasp the differences between theses categories, it’s important to first understand that the vast majority of people who pass through immigration detention are not “arrested, facing charges, or convicted” in a criminal context.
Despite the shared nomenclature of arrests and courts and judges, the immigration enforcement system is largely parallel to but not a part of the criminal justice system. Immigration courts, for example, are not actually part of the judicial branch but instead form part of the Justice Department, and their judges are DOJ employees.
There are exactly two federal crimes tied to immigration: 8 U.S.C. 1325 and 1326, which generally make it illegal to enter the country without admission or through fraud and to re-enter the country unlawfully after being deported, respectively.
Most people who illegally enter the country are never charged with violating one of these laws, much less put into criminal detention for it. (That’s not to say it’s never enforced; the short-lived zero-tolerance policy of charging asylum-seekers at the southern border prompted the family separation crisis of the summer of 2018). Instead, immigrants in federal custody are largely in the civil “non-punitive” custody of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).
The 2005 version of the law called for the DNA collection of people in both categories, but allowed the Attorney General to develop specific procedures. This was done through federal regulations (28 C.F.R. 28.12), which built in four exemptions to the collection process:
“Aliens lawfully in, or being processed for lawful admission to the United States”
People at ports of entry being evaluated for admission, provided they were not then put in formal detention or removal proceedings
People encountered in “maritime interdiction,” i.e. on sea vessels en route to the U.S.
“Other aliens with respect to whom the Secretary of Homeland Security, in consultation with the Attorney General, determines that the collection of DNA samples is not feasible because of operational exigencies or resource limitations.”
The new rule is targeting this fourth, much broader allowance, through which most immigrants in federal custody have thus far avoided DNA sampling. In 2010, as the system was to be fully implemented, then-Homeland Security Secretary Janet Napolitano used her regulatory power to exempt immigration detainees who weren’t otherwise facing criminal charges, as well as those with pending removal proceedings, writing that it was operationally unfeasible. This comprised most of the detainees in federal immigration custody.
The proposed rule — which has a public comment period until November 12th — would modify the fourth exemption by getting rid of the Homeland Security Secretary’s authority to exempt additional classes of people from the mandated DNA collection. This would void the previously issued exemptions and vest this authority exclusively in the Attorney General.
How did we get here?
The DNA Identification Act of 1994 gave the FBI the authority to create a national index of DNA collected from people convicted of crimes. Known as the National DNA Index System (NDIS), this database is one part of CODIS. (Both CODIS and the NDIS were formally implemented in all 50 states, plus Washington, DC and Puerto Rico, in 1998.)
In addition to DNA collected from certain convicted criminals, the 1994 law also authorized the indexing of DNA samples recovered from crime scenes or from “unidentified human remains.”
The goal was to use DNA samples to solve crimes more effectively, but the 1994 law didn’t let the government begin actively collecting DNA samples — instead, it let the FBI create a database of DNA samples that had already been collected.
In 2000, Congress passed the DNA Analysis Backlog Elimination Act, which gave the federal government — namely, the Attorney General — the ability to give grants to states for the purpose of adding DNA samples they had already collected to CODIS. The law also required the Bureau of Prisons to begin collecting DNA samples from convicted criminals in its custody.
None of this applied to immigrant detainees until the DNA Fingerprint Act of 2005, which expanded the Attorney General’s authority to collect DNA samples from “individuals who are arrested or detained under the authority of the United States.” As we explained above, this applied to immigrant detainees — at least in theory — who hadn’t been convicted of any crime, though this was prevented by Janet Napolitano’s categorical exemptions of detained immigrants who weren’t facing criminal charges or in removal proceedings.
Like other Trump immigration policies, the new DNA rule is built on decades of bipartisan legislation. If it went into effect and the exemptions were not maintained by the Attorney General, the new rule would severely increase the scope of the federal government’s surveillance of non-citizens — but the infrastructure needed for such a sweeping change to happen has been built up since the Clinton era.
The expansion of statutory DNA collection powers coincided with an increase in federal immigration detention. The Immigration and Naturalization Service’s average daily detainee population was roughly 5,000 in 1994, according to Detention Watch Network. (The INS handled immigration and deportation matters before DHS and its component agencies were established in 2003.) As of August, ICE had more than 55,000 people in its custody.
What’s next?
The rule isn’t final. Despite the flurry of headlines surrounding its publication, it doesn’t explicitly state that the people currently exempted won’t remain so, or that no new exemptions will be issued. It simply says that this decision will now be up to the Attorney General, currently William Barr, who “will review DHS's capacity to implement DNA-sample collection from non-U.S. person detainees as required by the regulation.” Theoretically, Barr could decide that this type of collection remains too onerous and maintain the previously-exempted classes, or exempt a new, more specific class, such as minors who pass through Border Patrol custody.
Given the broader immigration stances of Barr and the administration, as well as the tone of the proposed rule, this is pretty unlikely. In fact, much of the text makes the case for why DHS can and should take the DNA profile of all non-U.S. person detainees not specifically addressed in the first three regulatory exemptions. It notes that “subsequent developments have resulted in fundamental changes in the cost and ease of DNA-sample collection” and repeatedly blurs the line between people in federal criminal custody and immigrant detainees, claiming that “most immigration detainees are held on the basis of conduct that is itself criminal.”
This is an odd argument for a couple of reasons. First, while it’s certainly likely that many people detained near the border have committed a federal immigration crime, there aren’t many contexts in which the circumstantial statistical probability that a person committed a crime puts them in the same category as people actually convicted of that crime. Second, with regards to undocumented immigrants who entered the country lawfully and then overstayed their status — consistently and by far the largest share of new undocumented immigrants — there is no federal criminal offense whatsoever.
Given that lawful immigrants and visitors can have their status stripped if they are placed in removal proceedings and lose their case, it’s also entirely possible that even those who had lawful status at the beginning of their detention could have their DNA taken at some point before being deported or even departing voluntarily.
The rule also consistently claims a government interest in this mass DNA data collection. “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,” it read. According to the government, the collection of immigrant detainee DNA would further a number of specific interests, namely solving crimes, exonerating innocent people, and determining whether detainees should be put in more secure facilities and denied release pending removal proceedings if they are tied to unsolved crimes.
With characteristic subtlety, the proposed rule drives this point home with the example of a serial killer known as the “Railway Killer,” who was executed in Texas in 2006 after being found guilty of a series of grisly murders. He had also been deported a number of times, and the rule suggests that having his DNA taken then may have brought him to justice sooner.
In a section about the increased costs potentially caused by the new rule — which the government is claiming are technically none, given that the law already authorized expanded collection — DOJ estimates that, if no exemptions were added by the Attorney General, Homeland Security would be submitting “an additional 748,000 samples annually.”
The crux of the legal argument against the implementation of this rule — as part of a challenge that is almost certain to come, though perhaps after Barr issues his own exemptions (or lack thereof) — will probably center around the fact that most people in DHS civil immigration custody are not, in fact, being charged with or even necessarily under suspicion of having committed any crime, making the mass-collection of their DNA inappropriate. That argument will run up against the reality that Congress explicitly authorized this over a decade ago, and it was only by virtue of the Homeland Security Secretary that it didn’t happen.
Under the Radar
The Trump administration is reportedly working on a fast-track asylum program
The Trump administration rolled out a pilot program in El Paso intended to adjudicate asylum decisions in 10 days or less, the Washington Post reports. Under normal circumstances, a 10-day timeline for asylum decisions would be completely ridiculous; these cases typically take months if not years to decide. But as the Post notes, the asylum ban — or, more specifically, the fact that a federal judge allowed the ban to go into effect while the lawsuit against it plays out — makes this streamlining possible.
Under normal circumstances, migrants seeking asylum must pass a credible fear screening, an interview where an asylum officer determines whether they have a credible fear of being persecuted if they’re sent back to their home country, as the first step in the asylum process. The asylum ban didn’t get rid of these screenings, but made it so that migrants who passed through another country on their way to the U.S. and didn’t apply for relief there first are evaluated based on the more difficult standard known as reasonable fear, which could allow them to receive some non-asylum protections, but not asylum itself.
Instead of being sent to ICE detention facilities after being processed at the border, migrants in the pilot program remain the custody of Customs and Border Protection for most of the process, according to the Post’s report. They’re only given one day to call family members or lawyers before meeting with an asylum officer for their credible fear interview — which, in practice, means most people in this program won’t be able to find lawyers at all. The migrants who do manage to find lawyers won’t be able to meet with them in person, since attorneys aren’t allowed in Border Patrol stations.
ICE’s secretive detention centers for teenage immigrants
Last year’s family separation crisis — plus the reports of unaccompanied migrant children being held in dirty Border Patrol facilities for weeks — increased the focus on shelters for migrant children. These shelters, which are run by the Office of Refugee Resettlement, have to adhere to state licensing requirements. In theory, kids aren’t supposed to be kept there for more than 20 days. (That said, there have been a few exceptions to this: The Trump administration has argued that “influx” shelters don’t have to be held to the same standards as traditional shelters, and some children spend more than a month in ORR shelters waiting to be reunited with their families.)
Regardless of how long migrant children are kept in these shelters, they aren’t supposed to operate like detention centers — and legally, they aren’t detention centers at all. But CNN reports that ICE is sending some migrant teenagers, many of whom have been living in the U.S. for years, to youth detention facilities across the country. Unlike ORR shelters, these facilities are detention centers; and unlike adult detention centers ICE’s, these youth facilities are much harder to find.
ICE told CNN it detains teenage immigrants with serious criminal histories in these facilities because it “would be irresponsible and potentially dangerous for the agency to allow these individuals to remain out of custody with a guardian,” while they wait for their cases to be decided. But immigrant parents who spoke with CNN say ICE doesn’t tell them where it’s taken their children.
Five-year high of CBP agent criminal misconduct
An internal CBP report reveals that arrests of CBP officers and Border Patrol agents hit a five-year high of 286 in fiscal year 2018, having shot up after declining between FY 2014 and FY 2017, Quartz reports. Some of these were multiple arrests of the same agent, including one who was arrested five times; one who was arrested four times; and 11 who were arrested twice. The two largest categories of offense by far were “Drug/Alcohol-Related Misconduct” (129 arrests) and “Domestic/Family Misconduct” (57 arrests). The number remains lower than a high water mark of 348 arrests in 2012, but the upticks seem to clearly coincide with hiring surges that generally lower the standards for applicants who will be accepted into jobs at CBP.
Next Destination
California and the federal government headed for private detention showdown?
A couple of weeks ago, California Governor Gavin Newsom signed a measure that intends to ban the operation of private prisons (with some exceptions) and private immigration detention in the state, with the goal of full realization by 2028. Both private detention companies and the federal government have already called the enforceability of the measure into question. “[W]e believe the restrictions to force a phase-out of federal detention facilities under private management run afoul of the US constitution’s supremacy clause,” said a spokesperson for the GEO Group, one of ICE’s two largest private sector detention providers. An ICE spokesperson added that “[t]he idea that a state law can bind the hands of a federal law enforcement agency managing a national network of detention facilities is wrong.”
California, and some constitutional scholars, have countered that it’s within the state’s power to regulate private enterprises that operate within its borders, particularly if they involve public welfare and the safety of its residents. The Homeland Security Inspector General issued a report in June that found “immediate risks or egregious violations of detention standards” at the GEO facility in Adelanto, CA. The state is already embarking on a high-profile battle over federalism, having just been sued by the administration over its cap-and-trade program. This could be next.
It’s an interesting situation in particular because, unlike the standard sanctuary definition of just refusing to cooperate with federal immigration enforcement or finding workarounds for immigrant populations, the state is trying to flex its regulatory muscle to actually disrupt the enforcement system as it exists. It’s a novel approach, but California should be careful what it wishes for: it was reported this week that, after the county that encompasses Boston decided to cancel its detention contract with ICE, 180 detainees were scattered around the rest of the state, with some as far as Western New York, far from families and attorneys. If California succeeds in its push to shut down private facilities, it could replicate this pattern with thousands more.