It’s DNA-mnesty!

IRLI: The government’s failure to collect DNA samples prevents arrests of criminal aliens

WASHINGTON—The collection of DNA samples is a lawful and important tool to bring perpetrators to justice. So why is our federal government not using it to enable the arrest of criminal illegal aliens?

The Immigration Reform Law Institute (IRLI) filed a public comment on November 12, 2019, in response to a Notice of Proposed Rule Making (NPRM) by the U.S. Department of Justice (DOJ) regarding DNA-Sample Collection from Immigration Detainees, warning that the proposed rule is arbitrary, capricious, and unlawful and explaining that failure to collect DNA samples from non-U.S. citizens would result in de facto amnesty for illegal aliens. IRLI explained that the Department of Homeland Security (DHS) instead should collect the DNA samples, which would help identify individuals who may have committed crimes and which would prevent them from entering or remaining in the United States.

The DNA Fingerprinting Act of 2005, together with other legislation by Congress, authorized the U.S. Attorney General (AG) to collect DNA samples, however, from individuals arrested, facing charges, or convicted on federal charges and from non-U.S. citizens — mostly illegal aliens — detained under the authority of the United States, including by law enforcement agencies within DHS. 

In 2010, in response to a request by then-DHS Secretary Janet Napolitano, AG Eric Holder at the time granted DHS a temporary exemption from collecting DNA samples from what the federal government terms “administrative detainees” – usually illegal aliens not arrested on criminal charges. DHS still was required to collect DNA samples from individual arrested on criminal charges (known as criminal arrestees). Holder ordered DHS and all other federal agencies to complete implementation of DNA collection, including from so-called administrative detainees, as quickly as possible. 

“However, in 2018, several Customs and Border Protection (CBP) whistleblowers came forward and filed a complaint with the U.S. Office of Special Counsel (OSC) claiming that CBP had not collected DNA samples from individuals that CPB had in custody since 2008 and that the temporary exemption granted by Holder was not meant to be permanent,” said John Rooney, IRLI’s director of investigations. “The OSC later agreed with the whistleblowers and rebuked CBP for failing to comply with the law, which compromised public safety,” added Rooney.

IRLI has filed two Freedom of Information Act lawsuits, which are pending in District of Columbia federal district court, against ICE and the Federal Bureau of Prisons. The lawsuits seek to disclose the number of DNA samples taken from arrestees and detainees and the DNA matches from the FBI laboratory linking these aliens to violent crimes, and shine light on this massive breakdown in federal law enforcement.

By not collecting DNA samples from aliens that agencies within DHS, including CBP, Border Patrol, and Immigration and Customs Enforcement (ICE), detained or arrested, and by not submitting those samples to the FBI for comparison to DNA collected from crime scenes, law enforcement agencies were prevented from identifying certain individuals who may have committed violent crimes and who presumably would have been barred from entering or remaining in the United States.

It is statistically probable that thousands of such aliens may have gone on to commit new crimes, since they were never processed for exclusion or deportation from the United States. Permitting DHS to continue to avoid collecting DNA samples, and thereby not identifying offenders, essentially would be an unlawful de facto amnesty granted to certain illegal aliens who otherwise would be excluded from the country. 

In its public comments, IRLI warned that DOJ’s failure to address the public findings by the OSC, DHS’s stonewalling of that office’s investigation, and DHS’s continued failure to collect the DNA samples is arbitrary, capricious, and are grounds sufficient to reject the proposed rule.

“The missing DNA samples are crippling federal efforts to track and identify thousands of criminal aliens and hundreds of thousands of the illegal entrants who have been released into the interior due to the ongoing detention crisis on the southern border,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The President’s efforts to protect American citizens by enforcing our immigration laws should never again be sabotaged by such de facto amnesties, especially on the massive scale uncovered by the Office of Special Counsel.” 

The NPRM was published at 84 Federal Register 56397 on October 22, 2019.

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]