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Abstract

In October 2019, the Trump administration proposed a dramatic expansion of DNA collection from immigrants in federal detention. The final rule, which took effect in April 2020, eliminated a regulatory provision that had previously allowed the U.S. Department of Homeland Security (DHS) to exempt noncitizens from DNA collection if collection was “not feasible because of operational exigencies or resource limitations.” By the end of 2020, DHS was regularly collecting DNA from individuals in immigration custody, including asylum seekers at legal ports of entry.

Biometric data collected from noncitizens are included within the federal Combined DNA Index System (CODIS). A forensic DNA profile is stored in CODIS, while a physical DNA sample remains subject to indefinite storage at the government’s discretion. While forensic DNA profiles do not (yet) have the potential to reveal significant amounts of private genetic information, physical DNA samples contain an individual’s full genetic blueprint. Expanding DNA collection in the immigration context raises normative concerns about privacy and consent, building on longstanding questions about the ethics, impact, and efficacy of DNA databases. This new rule may be the first to result in the government’s widespread, permanent retention of genetic material based solely on a status other than a criminal arrest or conviction. In the long-term, mass DNA collection from noncitizens in federal detention could increase surveillance and overpolicing of minority communities.

This Note examines and critiques the Trump administration’s justifications for expanding DNA collection. Part I explores the human rights concerns underlying DNA collection and retention. Part II discusses the history and legal regime currently governing DNA collection in the United States, with a focus on how these frameworks apply to noncitizens in federal detention. Part II also outlines the Trump administration’s rationales for the rule change, while Part III offers a point-by-point critique of these justifications. This Note analyzes privacy and human rights concerns surrounding DNA collection, challenges the Trump administration’s racialized assumptions about crime detection and prevention, and highlights the hidden costs—both fiscal and human—of expanding CODIS on the basis of immigration status.

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