DOJ eliminates DHS discretion to exempt certain detained noncitizens from DNA-sample collection

Original Date Announced
March 9, 2020
The Department of Justice issues a rule to eliminate 28 C.F.R. § 28.12(b)(4), a provision that allowed the Secretary of Homeland Security to exempt certain noncitizens from DNA-sample collection when such collection "is not feasible because of operational exigencies or resource limitations." This change makes DNA-sample collection possible, without exception, from "all non-United States persons who are detained under the authority of the United States."
[ID #238]
DOJ Final Rule: DNA-Sample Collection From Immigration Detainees
Effective Date
April 8, 2020
Subsequent Trump-Era and Court Action(s)
- December 3, 2020
  DNA sample collection program to become fully operational by the end of the year
  
  CBP announced that the pilot programs it began in January 2020 to assess collection of DNA samples from certain individuals in CBP custody provided the information it needs to implement nationwide collection. Such collection is anticipated to reach full operation by December 31, 2020. CBP does NOT collect genetic material from four groups: 1) undocumented migrants lawfully in (or being lawfully processed in) U.S.; 2) undocumented migrants being held at Port of Entry for consideration regarding entry; 3) undocumented migrants held in connection with maritime interdiction; and 4) when FBI system already has undocumented migrants' genetic material.
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Fully in Effect

Status: Final/Actual

Trump Administration Action: Rule

Subject Matter: Border Interior Detention

Agencies Affected: ICE DOJ CBP

Pre Trump-Era Policies

December 10, 2008
Previously, under 28 C.F.R. § 28.12(b)(4), the Secretary of Homeland Security, in consultation with the Attorney General, could determine that the collection of DNA samples from certain noncitizens was not feasible because of operational exigencies or resource limitations.
Collection of DNA Samples
January 6, 2020
U.S. Customs and Border Protection will initiate 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.
The pilot program will be limited to the following locations:
- The U.S. Border Patrol will implement the pilot program in the Detroit Sector.
- The Office of Field Operations will implement the pilot program at the Eagle Pass Port of Entry in southwestern Texas.
CBP to Assess Collection of DNA Samples

The US Government Can Now Collect DNA From Thousands of People Who Have Never Committed a Crime

Proposed rule of DOJ mandates the collection of DNA from all immigrants in government custody, regardless of whether they have committed a crime.
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GAO May 2023 Report on CBP DNA Collections

In this 2023 report, the U.S. Government Accountability Office recommends that the CBP Office of Field Operations and U.S. Border Patrol each develop and implement mechanisms to systematically collect data on the reasons officers and agents are not collecting DNA from individuals arrested on federal criminal charges or certain noncitizens detained for immigration violations. The report also lists the amount of samples collected and diagrams the process of collection.
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