The Trump administration finalized a rule that will allow federal law enforcement on the border to fingerprint illegal immigrants when they are arrested, following a decadelong delay in its implementation.
The Justice Department on Friday published a final rule that will allow it to mandate the Department of Homeland Security to comply fully with the bipartisan DNA Fingerprint Act of 2005. The change gives Attorney General William Barr the authority to require that Customs and Border Protection begin fingerprinting noncitizens in its custody. Noncitizens have been exempt since the 2010 request of Obama-era DHS Secretary Janet Napolitano.
The DNA Fingerprint Act required federal agencies to “collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States.” In 2008, the Bush administration announced plans to implement the law but included four potential exempt groups: immigrants legally in the country, immigrants at a port of entry or asylum-seekers, and immigrants arrested by border agents working in the maritime environment.
In 2010, then-Attorney General Eric Holder said the DHS could refuse to collect DNA from immigrants in CBP custody, including those who were arrested illegally crossing the border and those arrested within the country by Immigration and Customs Enforcement.
Shortly after President Trump took office in 2017, then-DHS Secretary John Kelly mandated the department begin enhancing its biometric capabilities: the way it collects data from a finger, a face, an iris, voice, and DNA. Last August, the Office of the Special Counsel reported to the White House and Congress that CBP had not fingerprinted illegal immigrants. Special counsel Henry J. Kerner said, “CBP’s noncompliance with the law has allowed criminal detainees to walk free” and that the Justice Department should reconsider its position on not collecting fingerprints.
In October, the Justice Department issued a notice that it was close to starting collection from illegal immigrants. Late last fall, CBP launched a pilot DNA program to begin collecting samples from illegal immigrants in custody in two places on the border.
The FBI’s national database, the Combined DNA Index System, can be accessed electronically by local, state, and federal forensic laboratories for the investigation of crimes nationwide.
In fiscal 2019, which ended last September, CBP encountered 1.14 million people at the border who illegally entered the country between official land crossing points or were deemed unable to enter at those ports of entry.
