As of January 2020, the Department of Homeland Security (DHS) has been gradually implementing a phased DNA collection policy mandated by federal statute. This requires Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) to collect DNA samples from individuals detained or in the custody of their agency. Aliens, Lawful Permanent Residents, and even US Citizens who are subject to fingerprinting by either agency are subject to this law.
The Mandate’s Authority
DHS implemented this process based on 28 CFR § 28.12, which requires all federal agencies to collect DNA samples from a wide swathe of individuals who are under the control of such an agency. According to the statute, an individual should have their DNA collected if they are convicted, arrested, or facing charges from the United States, or if they are a “non-United States Person” detained under the authority of the US.
This policy only applies to individuals subject to fingerprinting. Additionally, DNA should not be collected from:
Individuals lawfully admitted or being lawfully processed for admission to the US;
Individuals held at a port of entry during crossing and not subject to further detention or proceedings; and
Individuals held in maritime interdiction.
The Policy in Practice
As the mandate implementation progresses, it should become clearer how this will influence the process at ports of entry. From the statute’s language, it does not appear that an officer can take a DNA sample when someone is applying for admission, unless they detain the individual and there are further proceedings that may follow.
When dispersing the mandate, DHS indicated that the collection of DNA would help identify individuals that may have committed a crime in the U.S. or assist with future criminal investigations. If an individual does not comply with the DNA collection, they may be charged with a class A misdemeanor, and an agent may take necessary steps to collect the sample.
