Rapid DNA Testing at the Border: Immigration Privacy Concerns

With the increase of immigrants entering the United States at the southern border in the past two years, the Department of Homeland Security (DHS) realized it needed a way to protect children who were being used for entry by nonfamilial adults. Beginning in May 2019, U.S. Immigration and Customs Enforcement (ICE) began a rapid DNA testing pilot at the border that determined whether children coming into the States with adults were biologically related to the adults. The purpose of the testing was to identify fraudulent biological relationship claims and to protect the children entering the States when adults they enter with are not part of familial relationship. In June, DHS and ICE issued a Privacy Impact Assessment on Rapid DNA Operational Use that permits the use of DNA testing to determine the relationship between adults and accompanying minor children at the border.^[1] On July 19, 2019, Representative Lance Gooden introduced a bill in the House of Representatives regarding DNA testing. Senator Marsha Blackburn introduced the same bill in the Senate at the beginning of August. The bill, named the End Child Trafficking Now Act, has been referred to the Subcommittee on Immigration and Citizenship in the House while it has stalled in the Senate since Congress was adjourned during the month of August.^[2]

What is the Privacy Impact Assessment on Rapid DNA Operational Use?

The Privacy Impact Assessment (“Assessment”) is an evaluation of rapid DNA testing on the border. The Assessment states that the number of fraudulent accounts of familial relationships between adults and accompanying minors at the border has been increasing, which could lead to an increase in smuggling, human trafficking, and child exploitation, along with other criminal activities.^[3] Rapid DNA testing was created in order to establish a biological relationship between the adult immigrant and the accompanying minor. The DNA test can be conducted in approximately ninety minutes and does not require human review unless there is a malfunction or inconclusive result.^[4] The DNA test consists of a cheek swab from both the adult and accompanying minor.^[5] Consent is needed in order for ICE to take DNA samples but refusing consent can be considered as a factor when determining a familial relationship, potential fraudulent activity, and entry into the United States.^[6] If the immigrant is not able to provide clear documentation and refuses to consent to DNA testing, he or she could face prosecution for fraudulent activity.^[7] According to the Assessment, after the test results are returned, the samples are destroyed and all electronic data store with the vendor is purged.^[8] Records are kept with ICE personnel for an extended period of time for administrative reasons.^[9] Rapid DNA testing is currently in use with regards to immigrant families, but the Assessment states that it could be used more broadly in the future, including testing with lawful permanent residents and in situations beyond the border.^[10]

What is the End Child Trafficking Now Act?

The End Child Trafficking Now Act (“Act”) is a bill to “amend the Immigration and Nationality Act to require a DNA test to determine familial relationship between an alien and an accompanying minor . . . .”^[11] Under the Act, DHS would request, and the Secretary of Health and Human Services would administer, a DNA test to both the adult immigrant and accompanying minor at the border when the adult does not have documents or a witness proving that they are the relative or guardian of the minor.^[12] When families are fleeing for their lives, such as those in asylum cases, they might not be able to provide documentation or witnesses for familial verification. Documents might have been left in their home country, or in some instances, migrants might never have been provided with them in the first place, such as with stateless individuals. Since they would not have the evidence required to prove the familial relationship, they would be asked to consent to a DNA test. If the adult immigrant refuses consent to a DNA test, the minor would be treated as an unaccompanied minor.^[13] If the DNA test fails to prove that the adult has a biological relationship with the minor, an immigration officer may arrest the adult if the officer determines, after interviewing both parties, that the adult is not related to the minor child and has reason to believe that the adult is guilty of a felony offense, including trafficking, recycling of a minor, or alien smuggling.^[14] Recycling of a minor is defined in the Act as the use of a minor “to enter the United States on more than 1 occasion, by an alien who has attained 18 years of age and is neither the relative nor the guardian of the minor.”^[15] The Act further makes recycling of a minor a felony offense with a sentence of imprisonment not more than ten years, a fine, or both.^[16]

Privacy Concerns

According to DHS, ICE has the power to take DNA at the border under 8 U.S.C. § 1357, which grants ICE certain powers to collect evidence in its investigations.^[17] Under § 1357, an “officer or employee of the Service . . . shall have power and authority to . . . take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of [this section].”^[18] An immigrant must prove that the accompanying minor is their child and can use evidence to show the relationship, including documents, witnesses, and now DNA testing. While the adult immigrant has to give consent for the collection of DNA, failure to consent can factor into ICE’s assessment to grant entry into the United States and to prosecute for fraudulent entry.^[19]

DHS’s Assessment provides that ICE personnel store DNA information after receiving the results of the tests. ICE personnel record the results of the test and any information, including the name of the adult and child, their dates of birth, Alien Registration Numbers, and more.^[20] The physical DNA profile samples and DNA profile information will be destroyed so that vendors will not have access to the information.^[21] While personnel access will be limited, everything but the physical DNA sample will be stored for future use.^[22] ICE will use this information for statistical data, including the number of tests performed, the number of familial relationships determined, and the number of criminal prosecutions.^[23] According to the Assessment, commercial vendors will undergo training on privacy, security, and records to try to prevent unauthorized access or dissemination.^[24] Because of the collection of personal data, however, the number of privacy risks should be a pressing concern in the immigration world.

In the Assessment, ICE attempts to address several privacy risks that could occur because of this DNA collection. Individuals who consent to rapid DNA testing might not be aware that their DNA information is collected and maintained.^[25] ICE mitigates this concern by requiring consent from the immigrant and providing them with a written privacy statement.^[26] If ICE has probable cause to believe that an immigrant has committed fraud, personnel can obtain a court-issued warrant authorizing rapid DNA testing.^[27] The court-issued warrant would provide for a collection of DNA without consent.^[28] The lack of consent when there is probable cause for fraud could lead to an abuse of power by ICE personnel. ICE could push for warrants instead of seeking consent, which could lead to privacy issues with immigrants who are unwilling to provide their DNA.

The Assessment clearly states that there is a risk that ICE could use the information gathered from DNA tests for purposes beyond familial relationship identification.^[29] DHS states that at this time, DNA testing is purely for the comparison of DNA between adult immigrants and their accompanying children.^[30] The privacy statements signed by immigrants state that ICE is only using that information for that purpose.^[31] However, in the future, the profile information gathered by ICE could be used to start tracking immigrants. It is also concerning that granting ICE the authority to DNA test underage minors means that immigrant children’s information is in the federal system well before they are eighteen-year-olds. The Assessment also addresses concerns about gathering too much information from possible fraudulent immigrants and that ICE could accidentally collect sensitive personal information from a United States citizen or a lawful permanent resident (“LPR”) who is attempting to cross the border.^[32] DHS states that ICE is only partially mitigating this concern by focusing their collection of samples from any possible fraudulent non-U.S. person.^[33] DHS states that ICE has the authority under 8 U.S.C. § 1357 to gather information from LPRs or other aliens, but is not currently going to gather information from that group.^[34] However, ICE is in the process of updating its external investigations system and could begin collecting DNA data from LPRs with regards to ICE immigration enforcement activities.^[35]

Besides the concerns laid out by the Assessment, the greatest concern about DNA testing should be the potential abuse of power by the government. Rapid DNA testing relies on the determination of ICE on which families should be tested at the border. The entire program leans on the determination of ICE personnel on which families could potentially be fraudulent and which ones are not. ICE could begin broadly testing immigrant families under the guise that the families are possibly fraudulent. These decisions are made based on the evidence that the families provide when they arrive at the border, including documents and witnesses that the families are biologically related. ICE personnel have the sole authority to determine if the evidence is not enough.^[36] If not, ICE can seek consent of the adults to take DNA tests along with their children. If the adults do not agree to testing, their failure to consent can be included in the determinations of familial relationships. Allowing ICE to decide which immigrant families should be tested and to pressure immigrant adults into consenting to tests seems like an overreach of ICE’s powers, especially since ICE has become more adversarial and aggressive towards the immigration community in the past couple of years.^[37]

As the Trump administration looks to increase the use of rapid DNA testing at the border, immigration advocates, attorneys, and immigrants themselves should be aware of this testing policy. If an adult with an accompanying minor cannot provide clear documentation or witnesses to evidence their relationship with the minor, ICE can request that the adult consent to a DNA test along with the child. Refusal to consent can lead to a determination of non-entry or even prosecution for fraud. ICE also has the authority to request court-ordered warrants for immigrants to provide DNA testing without consent from the adult immigrant. DHS has addressed some privacy concerns regarding the testing but admits in its Assessment that ICE is only partially mitigating these concerns. While there has been some success in the early use of DNA testing, DHS and ICE need to address these privacy concerns before Congress passes legislation, including the End Child Trafficking Now Act, and makes rapid DNA testing a legitimate, permanent tool at the border.

1. U.S. Dept. of Homeland Security, Privacy Impact Assessment for the Rapid DNA Operational Use, DHS/ICE/PIA-050 (June 25, 2019), https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-rapiddna-june2019_1.pdf. ↑
2. H.R. 3864, 116^th Cong. (2019), https://www.congress.gov/bill/116th-congress/house-bill/3864/text. ↑
3. Supra note 1 at 1. ↑
4. Id. at 2. ↑
5. Id. ↑
6. Id. at 4, 5. ↑
7. Id. ↑
8. Id. at 4. ↑
9. Id. at 6. ↑
10. Id. at 11. ↑
11. Supra note 2. ↑
12. Id. ↑
13. Id. ↑
14. Id. ↑
15. Id. at § 1430. ↑
16. Id. ↑
17. 8 U.S.C. § 1357 (LexisNexis, Lexis Advance through Public Law 116-56, approved August 23, 2019). ↑
18. Id. at § 1357(b). ↑
19. Supra note 1 at 6. ↑
20. Id. at 4. ↑
21. Id. at 5. ↑
22. Id. at 5. ↑
23. Id. at 6. ↑
24. Id. at 13, 14. ↑
25. Id. at 7. ↑
26. Id. ↑
27. Id. at 8. ↑
28. Id. at 8, 9. ↑
29. Id. at 9. ↑
30. Id. ↑
31. Id. at 10. ↑
32. Id. at 11. ↑
33. Id. ↑
34. Id. ↑
35. Id. ↑
36. Id. at 8. ↑
37. Claudia Flores, A Controversial ICE Program and the Decision Facing Localities this June, Ctr. For Am. Progress (May 16, 2019), https://www.americanprogress.org/issues/immigration/news/2019/05/16/469871/controversial-ice-program-decision-facing-localities-june/. ↑