UPDATE: On January 2, 2020 the DOJ submitted a final rule to the Office of Information and Regulatory Affairs for final approval. In the meantime, Customs and Border Protection have begun a small scale program to test the impact of the rule.
The Department of Justice (DOJ) is proposing a rule (84 FR 56397) that revokes the ability of the Department of Homeland Security (DHS) to exempt DNA-sample collection from “non-US persons” detained for immigration violations based on resource and operational limitations. This ability would instead be transferred to the Department of Justice. Exemptions regarding DNA-sample collection from immigrants lawfully in the country, immigrants held at an official port of entry awaiting admission, and immigrants intercepted at sea are unaffected by this proposed rule. According to the proposed rule, this exemption would be removed because of the increased accessibility and decreased price of DNA-collection, which is now considered as routine as, and more accurate than, fingerprinting.
The DOJ argues that the distinction between people detained for criminal charges and people detained on immigration violations is artificial and, therefore, DNA-collection procedures should be applied to both groups. The reasons the DOJ provides for this proposed rule include solving crimes accurately, protecting detention staff and detainees, informing decisions to release a detainee or not, determining conditions for a detainee’s release and their incentives to flee, and furthering the objectives of the criminal justice system.
According to the rule, DNA would be collected and run against DNA profiles in the Federal Bureau of Investigation’s (FBI) Combined DNA Index System, which contains DNA collected from crime scenes, to determine if there are any matches. The DNA profiles in this system do not disclose any physical traits, disorders, or dispositions of the person who contributed the sample, but do identify variations within the DNA.
This program would be phased in over the next three years with the help of the FBI and the Electronic Data Capture Project (EDCP). According to the proposed rule, the EDCP is designed to reduce the collection of duplicate DNA samples and eliminate manual biographical data collection, by using existing electronically stored information. The FBI is expected to provide DNA-collection kits to the DHS, and the EDCP is expected to increase the efficiency of the process for DNA-sample collection and analysis.