Effective this week, Customs and Border Protection (CBP) began collecting DNA from any person in CBP custody who is subject to fingerprinting, including aliens as well as United States citizens and Lawful Permanent Residents, as part of “a limited, small-scale pilot program to assess the operational impact of proposed regulatory changes that would require the collection of DNA samples from certain individuals in CBP custody.”

It is part of a larger federal initiative intended to “assess the operational impact of a Department of Justice (DOJ) proposed amendment to the regulation that requires the collection of DNA samples from certain individuals and the submission of those samples to the FBI’s Combined DNA Index System, also known as CODIS.”

CBP said “the regulations apply to any individuals who are arrested, face charges or are convicted (including US citizens and lawfully permanent residents), as well as to non-United States persons who are detained under the authority of the United States, including certain aliens in CBP custody.”

Biometric Update first reported in October that the Department of Justice (DOJ) had proposed amending regulations requiring DNA to be collected from non-US citizens detained at borders and ports of entry, and that the announcement had been made less than two weeks after the FBI announced it intended to negotiate a sole source contract with HOV Services Incorporated / Exela Technologies,for a one year maintenance agreement for the firm’s TurboScan System software suite used exclusively by the FBI to scan the FD-936 form that’s submitted for DNA sample submissions uploaded into the National DNA Index (NDIS).

DOJ’s announcement was also three days after the award of the contract, which is a continuation of the previous maintenance agreement with the same company.

Biometric Update also reported in August that in advance of the rule change DOJ had already began working with the Department of Homeland Security (DHS) “to initiate a pilot program for the collection of DNA from non-U.S. persons detained by DHS,” and that “as with all other DNA samples that federal agencies collect under the authority of the bipartisan DNA Fingerprint Act, the DNA samples that DHS collects from its non-United States person detainees will be entered into CODIS.”

US Immigration and Customs Enforcement (ICE) at the time had already began to expand its use of rapid DNA test kits to verify the familial relations of immigrants at the US-Mexico border following an initial trial which was widely criticized by civil and immigrant rights organizations.

DOJ first proposed the amendment as rule “DNA-Sample Collection from Immigration Detainees,” in the Federal Register on Oct 22, 2019. The public comment period ended November 12. It’s unclear when DOJ will issue a proposed final rule, given the more than 41,000 public comments it’s received.

This all came about because in 2008, DOJ had already published a final rule in the Federal Register implementing the collection of DNA samples pursuant to 34 U.S.C. § 40702, Collection and Use of DNA Identification Information from Certain Federal Offenders, which gave the US Attorney General the authority 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,” while also making it a class A misdemeanor for the failure of an individual subject to provide a DNA sample as required under the law.

However, that rule included a provision at 28 C.F.R. § 28.12(b)(4) that permitted the Secretary (in consultation with the Attorney General) to determine categories of aliens from whom collection is not feasible because of operational exigencies or resource limitations. Following an exchange of communication between DHS and DOJ in 2010, DHS was exempted from the mandatory DNA sample collection from certain non-US persons in administrative proceedings and administrative removals who did not have a criminal record.

DOJ noted in its proposed rule to eliminate 28 C.F.R. § 28.12(b)(4) that then DHS Security Janet Napolitano had “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 § 28.12(b)(4).”

“However,” DOJ noted in October, “subsequent developments have resulted in fundamental changes in the cost and ease of DNA-sample collection.” DOJ said the provision that authorizes the DHS secretary “to exempt from the DNA collection requirement certain aliens from whom the collection of DNA samples was previously not feasible because of operational exigencies and resource limitations” is no longer an issue because “the FBI’s laboratory has the capacity to handle the increased input from DHS, and that its capabilities can be scaled up to meet additional capacity. The FBI will provide DHS with the DNA collection kits, analyze the samples, and ensure that law enforcement agencies use the results in accordance with the FBI’s stringent CODIS privacy requirements.”

Still, it took a decade before DOJ published its new Notice of Proposed Rulemaking proposing to remove 28 C.F.R. § 28.12(b)(4), after which DOJ’s publication of the final rule the Attorney General “will have restored the AG’s plenary authority under the DNA Fingerprint Act to authorize and direct DNA sample collection by federal agencies, including DHS (subject to permitted limitations and exceptions).”

DOJ emphasized that, “DNA-sample collection from persons taken into or held in custody is no longer a novelty. Rather, pursuant to the mandate of § 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.”

Accordingly, DOJ argued its proposed rule removing the exemption authority of the DHS secretary “will not preclude limitations and exceptions to the regulation’s requirement to collect DNA samples, because of operational exigencies, resource limitations, or other grounds. But all such limitations and exceptions, beyond those appearing expressly in the regulation’s remaining provisions, will require the approval of the Attorney General.”

DOJ added that the Attorney General, through “exercising his plenary authority under the DNA Fingerprint Act of 2005 to authorize and direct DNA-sample collection by federal agencies, and to permit limitations and exceptions thereto, will review DHS’s capacity to implement DNA-sample collection from non-US person detainees as required by the regulation,” and that DOJ “will work with DHS to develop and implement a plan for DHS to phase in that collection over a reasonable timeframe.”

“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,” said Deputy Attorney General Jeffrey A. Rosen.

This “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.”

It’s the government’s position, as outlined by DOJ, that “this regulation has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation,” Executive Order 13563, Improving Regulation and Regulatory Review,” and that DOJ “has determined that this rule is a ‘significant regulatory action’ under Executive Order 12866, section 3(f).

The rule authorizes the DHS secretary to exempt certain aliens from DNA-sample collection based on operational exigencies or resource limitations. Following the proposed change, the decision regarding limitations and exceptions to DNA-sample collection from persons in the affected class will be fully vested in the Attorney General.

CBP’s pilot program – which is getting under way on behalf of DOJ much sooner than expected — is being performed in accordance with 34 U.S.C. §40702 and 28 C.F.R. §28.12, and will be limited to a pilot at the Border Patrol Detroit Sector, while the Office of Field Operations will implement the pilot program at the Eagle Pass Port of Entry in southwestern Texas.

CBP said in an announcement that, “During the 90-day pilot program, CBP will collect DNA samples from certain individuals held at both locations. For the US Border Patrol, this will include individuals between the ages of 14-79 who are apprehended and processed within the Detroit Sector,” and at the Office of Field Operations Eagle Pass Port of Entry it “will include individuals who present” themselves at the Port of Entry for consideration of admissibility, and are subject to further detention or proceedings.”

Pursuant to the January 3 Privacy Impact Assessment (PIA) which found no substantive privacy related problems for proceeding with joint CBP-ICE DNA Collection pilot, it was signed off on by US Border Patrol Chief Carla Provost; CBP Office of Field Operations Executive Assistant Commissioner Todd Owen; Acting Executive Associate Director of ICE Enforcement and Removal Operations Timothy S. Robbins; and DHS Acting Chief Privacy Officer Jonathan R. Cantor.

CBP and ICE, as federal law enforcement agencies, “are statutorily mandated to collect deoxyribonucleic acid from certain individuals who come into their custody,” the PIA determined, adding that, “CBP and ICE will begin to collect DNA from persons who are detained under the authority of the United States consistent with the DNA Fingerprint Act of 2005,” and that to “support this effort, the Federal Bureau of Investigation’s (FBI) Laboratory will provide Buccal Collection Kits to both CBP and ICE,” which will use these kits to “collect the DNA via buccal cheek swab and will send the DNA samples to the FBI, which in turn will process them and store the resulting DNA profile in the FBI’s CODIS National DNA Index System (NDIS) (CODIS/NDIS).”

NDIS contains DNA profiles already “contributed by federal and state agencies and participating forensic laboratories.”

DHS said “DOJ will assist [it] in developing and implementing a plan to phase in DNA-sample collection from non-US persons who are detained under the authority of the United States, as well as certain US citizens and Lawful Permanent Residents who are being arrested or facing criminal charges,” adding that, “The non-US persons (including those detained for criminal or administrative purposes) will have their DNA collected by ICE or CBP designated officers who will follow the collection and submission procedures described in the respective implementation” procedures outlined in the PIA, and that “CBP and ICE will send all DNA samples to the FBI Laboratory, which will process the samples and store the resulting DNA profile in CODIS.”

The PIA states that “the collected DNA samples may be used by other federal law enforcement agencies to support law enforcement investigations and to generate further investigative leads. Thus, DHS’s collection of DNA samples from certain US persons and non-US person detainees furthers the government’s interests of justice and public safety, while being mindful of the privacy risks inherent in individual genetic privacy.”

CBP will begin implementation using a phased approach beginning with requiring DNA sample collection “from arrested persons presented for prosecution and individuals held at a port of entry during consideration of admissibility and subject to further detention or proceedings, but will not include DNA samples from anyone under the age of 14.”

“CBP may also collect DNA samples from other aliens detained under the authority of the United States,” DHS said, noting that “cooperation in DNA sample collection is a mandatory condition of pretrial release and refusal to cooperate in DNA sample collection is a Class A misdemeanor.”

DHS said CBP will implement its collection of DNA for inclusion into CODIS during “a five-phased pilot approach over the course of the next three years,” and that during and after the pilot, “the FBI will provide CBP with all Buccal Collection Kits,” which includes the necessary Request for National DNA Database Entry Form, FD-936, and a DNA collection device.

FD-936 and the device contain a “matching unique barcode” which “must remain together throughout the entire process,” as they “are used for, among other things, tracking purposes at the FBI Laboratory and the profile entries into the CODIS.”

Despite the controversy DOJ’s proposed rule has garnered, given the extraordinary, lengthy reasoning and litany of supporting federal laws, rules, and regulations DOJ articulately spelled out in the proposed rule change – not to mention the time being expended by DHS — it’s difficult to see a scenario in which the final rule isn’t adopted. DOJ made a compelling case that cost as an impediment just simply is no longer an issue.

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