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Documents just released by US Immigration & Customs Enforcement (ICE) in response to one of EFF’s Freedom of Information Act requests show that DHS is considering collecting DNA from kids ages 14 and up—and is exploring expanding its regulations to allow collection from kids younger than that.
Temporary Exemption/or Those Outside the Phased implementation
ICE understands that DHS OOC is developing its position on how best to handle a phased roll
out for a number ofcomponents, perhaps requesting from DOJ an exemption for all individuals
outside the current operative phase. Eventually, when the regulation is fully implemented, this
exemption will become obsolete.
Current Detainee Population
DRO has approximately 35,000 aliens already in detention, the vast majority of whom are past
the normal fingerprint and booking process. Sampling each individual already in custody would
be an enormous cost and logistical burden and would be difficult to accomplish since many
individuals are deported within 29 days. DRO has estimated that collection costs for the current
detention population are about $2.0I million. I I In its own implementation, DOJ has exempted
the U.S. Marshals Service from collecting DNA from persons in their custody already past the
booking process. DOJ indicated that it is open to this exemption for individuals in DHScustody
as well, and noted that the DHS Secretary could exempt all non-arrestees in this category. DHS
OGC should request that the Attorney General exempt all arrestees and detainees currently in
detention and past the point of fingerprinting. Failing that, ICE requests that the DHS Secretary
unilaterally exempt non-U.S. person detainees already in detention.
The regulation aligns DNA sampling with fingerprinting. Currently, ICE does not typically
fingerprint juveniles under the age of 14 upon administrative arrest or detention. A juvenile
under 14 is fingerprinted in limited cases, usually only ifhe or she has a criminal history or is
being arrested for criminal charges. Following its current practice with respect to fingerprints,
ICE intends to conduct DNA sampling ofjuveniles under the age of 14 only in cases where there
is a criminal history or an arrest for criminal charges.
Juveniles who are 14 tol7 years ofage are fingerprinted ifplaced in removal proceedings. Since
the regulation requires federal agencies to sample non-U.S. person detainees if they are typically
fingerprinted, these juveniles would fall under the regulation's sampling requirements unless
DHS sought an exemption. ICE recommends that DHS seek an exemption from DNA sampling
for non-criminaljuveniles ages 14 to 17, even though they are routinely fingerprinted; ICE will
conduct DNA sampling ofjuveniles ages 14 to 17 only in cases where there is a criminal history
or an arrest for criminal charges.
This exemption will reduce implementation costs and ICE's exposure to criticism. There is a
high likelihood that ICE would face litigation and other opposition from community and non
governmental organizations (NGO) if ICE were to sample all juvenile detainees. While juveniles
who pose the greatest risks, such as criminal arrestees (including those under 14) will be
sampled, ICE will not sample juveniles who do not pose such a risk.
Calculations based on the 9/11108 figure of current detention population, 34,708 and excluding start-up costs.
On January 12,2009, former Department of Homeland Security (DHS) Deputy Secretary
Paul Schneider advised former Attorney General Michael Mukasey that DHS's implementation
of the rule was not feasible due to resource limitations and operational exigencies. In March
2009, Secretary Napolitano directed each DHS operational component to create an
implementation plan to begin DNA sample collection. ICE submitted its plan calling for a
phased approach to implementation in July 2009.
On March 22, 2010, Secretary Napolitano wrote to Attorney General Holder requesting
exemptions for DHS from sampling non-U.S. persons detained for processing under
administrative proceedings (not facing criminal charges), including juveniles under the age of 18,
and non-U.S. persons currently Within DHS custody, pending administrative removal
proceedings. Secretary Napolitano also requested that the Attorney General exempt DHS from
collecting DNA samples from all persons detained or arrested in the event of emergency or
unforeseen circumstances or conditions. There has been no formal response from DOJ, although
the DHS Office of General Counsel (OGC) and DOJ have had further discussions.
ICE is the first DHS component to begin a phased approach to DNA sampling. In October and
. November 2009, three Special Agent in Charge (SAC) offices (SAC San Diego, SAC San Juan,
and SAC Saint Paul) received the necessary training and equipment to begin implementation of
the DOJ rule. On April 26, 2010, DHS OGC concurred with ICE's plan to begin sampling in the
pilot locations as soon as operationally feasible. On June 15,2010, Homeland Security
Investigations (HSI) Assistant Director Michael Holt notified all SACs that DNA sampling in the
three pilot locations would begin within the next 30 days, and will be limited to individuals
arrested by ICE Special Agents for a violation of federal or state criminal law. HSI will conduct
this pilot program for at least 6 months before expanding implementation to other SAC offices.
The pilot allows ICE to refine procedures, identify any unforeseen costs (the DNA kits and
shipping costs are paid for by the Federal Bureau of Investigation) and funding, and allow for
sufficient training and adjustments as warranted before implementation is expanded.
The Offices of Policy, Public Affairs (OPA), Privacy, Congressional Relations, and the Principal
Legal Advisor (OPLA), as well as Enforcement and Removal Operations,4 met with HSI to
discuss the program. OP A is working on public affairs guidance (attached) regarding the DNA
sampling pilot program, in consultation with HSI, Policy, and OPLA. OCR and OPA intend to
respond to inquiries, rather than making announcements of the DNA sampling pilot program.
There may be non-government organization inquiries, as well.