Why Is Our Government Ignoring the Law on Illegal Aliens and DNA Samples?

October 23, 2019

IRLI sues ICE and BOP for DNA record hits on non-U.S. citizens tied to violent crimes

WASHINGTON — DNA samples have become a vital tool to solve crimes and exonerate those wrongly accused. Thus Congress passed the DNA Fingerprint Act of 2005, which mandates the collection of DNA from non-U.S. citizens who are arrested or detained by Department of Homeland Security (DHS) law enforcement agencies. However, whistleblowers have informed the Immigration Reform Law Institute (IRLI) that the law is being ignored.

On behalf of the Federation for American Immigration Reform, IRLI has filed Freedom of Information Act lawsuits against U.S. Immigration and Customs Enforcement (ICE) and the Federal Bureau of Prisons (BOP) regarding their DNA practices.

IRLI is seeking, among other things, records regarding the number of DNA samples taken from non-U.S. citizens in custody or being detained for immigration violations as well as DNA offender or forensic hits received from the FBI Laboratory from those samples. The records sought by IRLI may reveal the number of criminal aliens who, while in DHS and BOP custody, would have been linked to violent crimes committed in the U.S. had their DNA been collected.

400,000 Unsolved Rape Cases

An IRLI investigation has already uncovered gross dereliction of duty by DHS officials.IRLI possesses a 2010 memorandum from then-DHS Secretary Janet Napolitano to then-Attorney General Eric Holder that reveals Napolitano had requested a temporary waiver from the collection of DNA samples from arrestees and detainees with the intent to phase in implementation over the following year, citing a lack of resources. In response, Holder granted Napolitano a short-term waiver. However, full implementation the following year never occurred.

During a subsequent 2012 Homeland Security oversight hearing, Senator John Cornyn expressed concern to Napolitano that DHS was not complying with the law as compliance with the “DNA Fingerprint Act would address the 400,000 estimated untested rape kits that currently are sitting in police lockers.”

Senator Cornyn reminded Napolitano that during her 2009 Senate confirmation hearing she testified she would comply with the law. Cornyn added that the FBI was prepared for and expected to receive between 120,000 and 240,000 DNA samples from DHS in 2012. To date, he said the FBI reported having only received 4,000 samples.

DNA Samples Help Solve Crimes

A 2016 DNA collection project with U.S. Customs and Border Protection (CBP) revealed that 19 percent of the approximately 2,500 inmate samples taken from non-U.S. citizens returned as matches in the FBI’s Combined DNA Information Systems, also known as CODIS. Of those matches, 49 percent were matched to sexual assaults and 40 percent, to other violent crimes.

Since the Obama-era administration waiver was granted, CBP has detained over 5 million individuals that the IRLI whistleblowers allege may contain a similar percentage of CODIS matches to persons who have escaped prosecution due to CBP’s failure to collect DNA samples.

This past summer, the Office of Special Counsel (OSC) investigated the whistleblowers’ allegations and issued its investigative findings in their favor, saying, “CBP is not collecting DNA samples from detainees and arrestees, which constitutes a violation of law, rule, and regulation, and is a substantial, specific, and on-going danger to public safety.”

To add insult to injury, the BOP and principal Department of Justice investigative agencies—FBI, DEA, ATF, and USMS─implemented the DNA Fingerprint Act long ago. Thus, U.S. citizens have been subjected to the law for years while DHS still refuses to apply the law to non-U.S. citizens, including illegal aliens.

“If DHS is not taking DNA samples from illegal aliens as required by law, it’s yet another example of foreign nationals getting special treatment that legal U.S. residents do not get, and that’s indefensible,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The inaction by DHS leadership to comply with the law in over a decade is a gross dereliction of duty and failure of DHS to live up to its mission statement, ‘With honor and integrity, we will safeguard the American people, our homeland, and our values.’”

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]