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Why Is Border Patrol Planning to DNA Test Asylum Seekers?

The Department of Homeland Security will use the tests to identify what it calls fraudulent families. But advocates say the plan raises privacy concerns.
Detained migrants wait to be transported by U.S. Border Patrol at the border of the United States and Mexico on March 31st, 2019, in El Paso, Texas.

Detained migrants wait to be transported by U.S. Border Patrol at the border of the United States and Mexico on March 31st, 2019, in El Paso, Texas.

Next week, at two locations along the United States' southern border, authorities will begin swabbing the cheeks of migrants and asylum seekers traveling as families to complete DNA tests. The new pilot program, first reported by CNN, seeks to identify what the Department of Homeland Security calls "fraudulent families." The DNA tests can provide results in as little as 90 minutes.

For months, the Trump administration has claimed that some asylum seekers arriving on the border with children are not actually families, but rather adults traveling with unrelated children. The administration argues that these people hope to take advantage of laws that limit the amount of time children and families can remain in detention.

In recent months, investigators with the DHS say they have noticed an increase in fraudulent families arriving at the border, according to an Immigration and Customs Enforcement official speaking on background. The official says that teams of specialists have been dispatched to help detect and prevent this form of human trafficking.

The pilot program is a limited test of a new tools that might help those specialists, the official says, and the only individuals who will be tested are those who have already exhibited suspicious behavior. ICE officials told CNN that the program will not involve sharing or storing DNA information, and that migrants will have the opportunity to consent to the DNA tests.

Why Civil Rights Advocates Are Worried

Some advocates are suspicious of the administration's motives. In the past, immigration authorities have made fraud claims and separated legitimate parents from their children. Others say that the administration is exaggerating the scale of the problem: According to BuzzFeed News, immigration officials say they have identified 3,100 fraudulent families in the last year—but that represents less than 1 percent of the 256,821 family units apprehended. Some say the number should be even lower, because officials consider a family fraudulent if they believe that a child is not actually under 18 years old. (In the past, immigration authorities have been accused of ignoring evidence that people in adult detention facilities are actually minors.)

Arguing that the DNA tests are unnecessary, the American Civil Liberties Union says the new plan represents another attempt by the administration to "intimidate and deter" asylum seekers. "Forced DNA collection is coercive and intrusive, and it raises serious privacy and civil liberties concerns," Vera Eidelman, staff attorney with the ACLU's Speech, Privacy, and Technology Project, writes in a statement sent to Pacific Standard.

"This in no way deters legitimate families from claiming any kind of immigration benefit at the border," the ICE official says.

Immigration Authorities Have Mistakenly Separated Families Before

Attorneys representing asylum-seeking families say that the DHS's efforts to identify and prosecute fraudulent families have resulted in legitimate parents and guardians being separated from their children.

Last year, a Congolese woman asked for asylum at an official port of entry in Southern California with her seven-year-old daughter. U.S. authorities took them into custody together. But four days later, ICE agents separated them, claiming that the woman, who the ACLU calls "Ms. L," was not the child's mother. Ms. L was kept in detention in San Diego; her daughter was taken to an unaccompanied children's shelter in the Chicago area.

In February of 2018, the ACLU successfully sued ICE on behalf of Ms. L., and she and her daughter were reunited the following month. Ms. L is now part of a class-action lawsuit filed by the ACLU on behalf of parents who say the U.S. government separated them from their children based on false fraud claims.

Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, served as attorney on Ms. L's individual case and is the lead attorney in the ongoing class action suit. Gelernt says that the DHS's new plan could feasibly violate aspects of the court ruling made in the Ms. L case. In a statement to Pacific Standard, Gelernt writes that the court "made clear that DNA must be used only as a last resort where there is a genuine reason to doubt parentage and no less intrusive method will be effective."

Attorneys say there's another problem with using DNA tests to determine true parentage: Some children are traveling with people who are not their biological parents, but are nonetheless their legitimate parents or guardians.

Kennji Kizuka, an attorney who now works as a senior researcher for the advocacy organization Human Rights First, says he represented a client whose son and daughter-in-law were murdered in their home country. The woman fled with her grandchildren and her own children. Kizuka says that, when she reached the border, U.S. authorities detained her and took the children away from her, putting them in shelters for unaccompanied children run by the Office of Refugee Resettlement.

According to the ICE official who spoke on background, the "DHS has [a] longstanding existing policy that requires adoptive parents or other legal guardians to present legal documents at the border."

Civil Liberties Advocates Argue That DNA Testing Is an Invasion of Privacy

Beyond the worries about separating legitimate families, civil liberties advocates caution that using DNA tests could be an invasion of privacy, and contributes to the government's surveillance apparatus.

Eidelman, the ACLU attorney working on the organization's privacy efforts, argues that the government's interest in DNA testing migrants does not come from human trafficking concerns, but rather from the government's desire to "learn more about an individual's identity."

"The government claims it does not plan to store or share the information collected from these intrusive and coercive tests for now, but the fact that it is even building out this surveillance infrastructure—using the pretext of the border—should trouble us all," Eidelman writes, adding that it's "not hard to imagine" various government agencies creating a centralized government database.

In response to the concerns expressed by the ACLU and other advocates, the ICE official says, "These accusations have no basis in the facts of the pilot program. This is a limited piloted use of this technology by criminal investigators to determine whether or not it is a tool that will strengthen federal investigations."