Rapid DNA Testing at the Border: Protecting the Children

“This really is an invasion of our country by human traffickers.  These are people that are horrible people bringing in women mostly but bringing in women and children into our country.” – United States President Donald Trump[1]

 

In 2019, President Donald Trump became more tenacious in his need for a southern border wall and stricter immigration policies.  President Trump began the year with a fixation on the need for stronger borders to protect women and children who were being smuggled across the border and trafficked into the sex trade and other forced labor.  In early 2019, President Trump stated that “[h]uman traffickers and sex traffickers take advantage of the wide-open areas between our ports of entry to smuggle thousands of young girls and women into the United States and to sell them into prostitution and modern-day slavery.”[2]  While the high majority of human trafficking cases in the United States are domestic, international trafficking does occur, but reports show that the majority of women and children trafficked into the United States come through ports of entry with falsified documents.[3]  In order to combat the trafficking of children across the border, the Department of Homeland Security through its Immigration and Customs Enforcement Agency started using a new type of testing to ensure that families crossing the borders are not, what DHS calls, fraudulent family units.[4]  The new testing involves a cheek swab DNA test of the adult migrant and accompanying minor, which is then processed in ninety minutes and establishes the relationship between the two parties.[5]  This article examines the true scope of human trafficking across the southern border and the protection of children under the new rapid DNA testing.

President Trump stated on many occasions that a border wall would assist in protecting women and children from being trafficked illegally across the border.[6] Government and organizational reports show, however, that the majority of trafficking occurring across the southern border is happening at the ports of entry.[7]  The President’s depiction of women and children “being bound and gagged and dragged across the border in rural areas” is not the type of trafficking that legal and humanitarian organizations are reporting.[8]  Instead, organizations report that the majority of women are psychologically coerced into crossing the border at a port of entry and then manipulated into sex or labor trades.[9]  With the administration’s new detention policies, the government claims that adults are increasingly crossing the border with children in order to avoid detainment.[10]  According to government regulations, migrant children cannot be held for more than twenty days in detention which leads to the release of the family until their immigration court hearing.[11]  From mid-April to June 14, 2019, ICE identified 275 potentially fraudulent families, discovered 735 fraudulent documents or claims, and delivered 553 individuals to the Department of Justice for prosecution.[12]  According to former DHS Acting Secretary, Kevin McAleenan, from October 2018 to May 2019, border officials documented 4,800 family units that were considered fraudulent at the southern border.[13] That number comprises just under 1.5% of families entering the United States through Mexico.[14]

In order to combat this type of fraudulent activity, the DHS began a pilot program in May 2019 that allows for ICE to DNA test families which ICE personnel deem suspicious for fraudulent activity.[15] At the time an adult and accompanying minor enter a port of entry, the adult can evidence a familial relationship with the child through documents and witnesses.[16] If ICE personnel decide that the evidence is not enough, they can request that the adult migrant consent to a DNA test.[17] ICE personnel cannot demand that a migrant consent to the test, but failure to consent can be considered as evidence in a suspected fraudulent case and can be used to determine entry into the United States.[18]Further, ICE has the authority to seek a court-ordered warrant for collection of the DNA if the adult migrant does not consent and there is probable cause to believe that the immigrant has committed fraud.[19]  During the three-day pilot program, eighty-four families were tested for biological familial relationships.[20]  Out of those eighty-four families, sixteen family units were identified as fraudulent and the adults faced prosecution for criminal charges, including identity and benefit fraud, alien smuggling, human trafficking and child exploitation.[21] DHS claims that the DNA testing was also a deterrent during the pilot phase with multiple instances of adult migrants admitting to fraudulent activity before the test was administered.[22]

Following the pilot, DHS announced that it would continue the testing and would expand it to more locations along with the border.[23] Further, Bode Cellmark Forensics was awarded a $5.2 million contract for rapid DNA testing by ICE.[24] In July and August, Senator Marsha Blackburn and House Representative Lance Gooden introduced a bill in their respective houses to amend the Immigration and Nationality Act to require DNA testing if ICE personnel have probable cause for fraudulent activity.[25] Fraudulent activity is suspected when an adult migrant cannot produce sufficient evidence, including documents and witness testimonies, to establish that the accompanying minor is a family member.[26] This bill, the End Child Trafficking Now Act, is intended to prevent the trafficking of children and the recycling of minors across the border.[27]

Questions have arisen over the accuracy of the testing and the issues of determining familial relationships.[28] The use of DNA testing at the border walks a thin partisan line.  Champions of testing state that it will prevent fraudulent family units from entering the United States and protect children who are being trafficked or recycled as a means for adult migrants to avoid detention.[29]  Opponents of testing state that the government’s claims of trafficking are exaggerated and that other concerns, such as privacy and inaccuracy issues, outweigh the risks to minors.[30]

Although Trump’s administration might be overexaggerating the extent of child trafficking across the border, if DNA testing is able to prevent any minor from being trafficked or recycled, the government should consider that a success. DHS and ICE have provided results from their initial pilot program in which sixteen children were not related to the adult migrants they accompanied.[31] DHS stated that the adults in the case might face criminal prosecution for their activities but did not provide further information about these cases.[32] If those children were being trafficked by random strangers, the DNA testing proved that the program could protect foreign children from being brought to the United States in order to prevent detainment of the adult migrants.

DNA testing, however, has another flaw in its use to detect familial relationships. Parents, guardians and family members might not necessarily be biologically related to the minor children.  Modern families do not consist of strictly biological relationships. While adult immigrants can provide documentation and witnesses of other relationships, such as adoptions or guardianships, ICE personnel can still question the relationship if it has probable cause to believe the family unit is fraudulent. The issue then becomes whether the accompanying minor is taken from the adult if there is no biological relationship in this type of situation. Further, there is the possibility that adult migrants might be willing to falsify or forge documents showing an adoption or guardianship instead of a birth certificate claiming biological relations in order to circumvent the DNA testing.  Adult migrants have also brought children into the country when a parent or relative already in the United States pays to have the children brought in. Adult migrants could be reuniting the children with their families in the United States, but instead could be separated because of a lack of biological relations.

DHS needs to address the treatment of children who are brought across the border by fraudulent activity. If an adult migrant is determined to have unlawfully entered with a minor, the child is taken from the migrant and is considered an unaccompanied minor for immigration purposes.[33] The children are turned over to the Health and Human Services Department for detention and welfare care.[34] The Office of Refugee Resettlement (ORR) is responsible for the care of the children.[35] Children in ORR care are split into four categories with children in the first three categories ending up with a sponsor, whether it is a parent, guardian, or relative in the United States.[36] The last category includes minors who do not have a potential sponsor in the United States.  Roughly one-third of the children in ORR’s care fall into the last category.[37] These children could face indefinite detention until they age out of the system and are placed in adult detention locations.[38] Children who are separated from the adult migrants with whom they entered into the country would likely fall into the last category unless they can show that they have family in the United States. The costs of housing children in detention centers is a major burden on the government and taxpayers with the reported costs of anywhere from $298.00 to $775.00 per child per night depending on the housing.[39]

The government needs to consider the trauma that these migrant children face. Not only have the children been separated from the adult migrants they crossed with, they now face indefinite detention because of the choices of others. Migrant children might not be willing to acknowledge that they have family in the United States in order to protect their relatives or because they do not understand the position they are in. The situation might be made worse if the adult migrant was attempting to reunite the child with his or her parents in the United States but is separated at the border because they are not biologically related. These children, whether they have family in the United States or in their home countries, are now detained in the United States without the knowledge on how to find their families or return home.

With or without DNA testing, the immigration system is failing minor children. DNA testing prevents traffickers from exploiting children but could separate adult migrants who had good intentions from the accompanying children with whom they cross the border. These children could potentially not be reunited with their family for years, regardless of whether the family is in the United States or the children’s home country. Reports show that conditions at detention facilities that house children are subpar and children are being housed like criminals for crimes that they did not commit, but were brought into instead.[40] The traumatization migrant children face when they are brought across the border and pulled from adult counterparts will have lasting impacts on their lives.

[1] Interview: Donald Trump Interviewed by Margaret Brennan on CBS’s Face the Nation (Feb. 3, 2019), https://factba.se/transcript/donald-trump-interview-cbs-face-the-nation-february-3-2019.

[2] Speech: Donald Trump Delivers the State of the Union (Feb. 5, 2019), https://factba.se/transcript/donald-trump-speech-state-of-the-union-february-5-2019.

[3] Sarah McCammon, Human Trafficking and the Southern Border, NPR (June 29, 2019), https://www.npr.org/2019/06/29/737268821/human-trafficking-and-the-southern-border.

[4] 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.

[5] Id. at 2.

[6] Supra note 3.

[7] Id.

[8] Id.

[9] Id.

[10] John Burnett, More than 3,100 Migrants Found with Fake Documents in Past Year, Federal Agents Say, NPR (Apr. 10, 2019), https://www.npr.org/2019/04/10/711850056/fake-documents-a-growing-problem-among-migrants-crossing-u-s-mexico-border.

[11] Priscilla Alvarez, ICE Ramps Up DNA Testing for Migrant Families Along the Southern Border, CNN (July 22, 2019), https://www.cnn.com/2019/07/22/politics/ice-deploys-dna-testing-at-border/index.html.

[12] ICE Awards New Contract for Rapid DNA Testing at Southwest Border, Expands Pilot Program, U.S. Immigration and Customs Enforcement (June 18, 2019), https://www.ice.gov/news/releases/ice-awards-new-contract-rapid-dna-testing-southwest-border-expands-pilot-program.

[13] Anna Giaritelli, Trump Official: 4,800 Members of Fake Families Identified at Border – 1.5% of Migrant Families, Washington Examiner (June 11, 2019), https://www.washingtonexaminer.com/news/trump-official-4-800-members-of-fake-families-identified-at-border-1-5-of-migrant-families.

[14] Id.

[15] Supra note 11.

[16] Supra note 4, at 8.

[17] Id.

[18] Id at 6.

[19] Id at 8.

[20] Supra note 12.

[21] Id.

[22] Id.

[23] Id.

[24] Chris Burt, Rapid DNA Testing at U.S. Border Extended and Criticized, BiometricUpdate.Com (Aug. 7, 2019), https://www.biometricupdate.com/201908/rapid-dna-testing-at-u-s-border-extended-and-criticized.

[25] H.R. 3864, 116th Cong. (2019), https://www.congress.gov/bill/116th-congress/house-bill/3864/text.

[26] Supra note 4 at 4.

[27] Supra note 25.

[28] Supra note 24.

[29] See supra note 10, 12.

[30] Saira Hussain, ICE’s Rapid DNA Testing on Migrants at the Border is Yet Another Iteration of Family Separation, Electronic Frontier Foundation (Aug. 2, 2019), https://www.eff.org/deeplinks/2019/08/ices-rapid-dna-testing-migrants-border-yet-another-iteration-family-separation.

[31] Supra note 12.

[32] Id.

[33] Joel Rose, Migrant Caregivers Separated from Children at Border, Sent Back to Mexico, NPR (July 5, 2019), https://www.npr.org/2019/07/05/738860155/family-separations-under-remain-in-mexico-policy.

[34] Id.

[35] Graham Kates, Angel Canales and Manuel Bojorquez, Thousands of Unaccompanied Migrant Children Could be Detained Indefinitely, CBS News (July 23, 2019), https://www.cbsnews.com/news/thousands-of-unaccompanied-migrant-children-could-be-detained-indefinitely/.

[36] Id.

[37] Id.

[38] Id.

[39] Kevin Breuninger and Tucker Higgins, ‘Tent Cities’ for Migrant Children Reportedly Cost Much More than Detaining Families Together, CNBC (June 20, 2018), https://www.cnbc.com/2018/06/20/migrant-kids-tent-cities-cost-more-than-detaining-families-report.html.

[40] Adam Serwer, A Crime by Any Name, The Atlantic (July 3, 2019), https://www.theatlantic.com/ideas/archive/2019/07/border-facilities/593239/.

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