The Department of Homeland Security (DHS) recently announced a pilot project to collect DNA samples from certain travellers, which commenced on January 6, 2020.
This announcement has prompted questions from Canadians (and other foreign nationals), who are concerned that they may be required to provide a sample of their DNA when travelling to the United States. Although privacy advocates are concerned about this mandatory collection of DNA, the pilot project, as it presently stands, may not be a significant departure from current practices.
The US Attorney General already has the authority to collect DNA samples from: (a) individuals (including US citizens or lawful permanent residents), who are arrested, facing charges, or convicted; and (b) aliens (individuals other than US citizens or lawful permanent residents), who are detained under the authority of the United States.1 Failure to provide a DNA sample as required is considered a class A misdemeanor, which is typically punishable by a maximum term of imprisonment of one year or less, but more than six months.2
The current regulations permit the DHS Secretary (in consultation with the US Attorney General) to determine categories of aliens from whom collection is not feasible because of operational exigencies or resource limitations.3 DHS is currently exempted from the requirement to collect DNA samples from certain aliens in administrative proceedings and administrative removals who do not have a criminal record.
In October 2019, the Department of Justice (DOJ) published a proposed rule, which would delete this exception from the regulations. Once it becomes final, the Attorney General will have the ability to unilaterally direct federal agencies (including DHS) to collect DNA samples. DHS is therefore initiating a pilot project to assess the operational impact of this proposed regulatory change.
Details of DHS's pilot project
According to DHS's Privacy Impact Assessment, which was published on January 3, 2020, DHS will implement the collection of DNA in a five-phase pilot project over the next three years. Any DNA that is collected will be sent to the Federal Bureau of Investigation for inclusion in its DNA databases. Phase V will involve full implementation at all United States Customs and Border Protection (USCBP) Sectors and ports of entry.
The recent DHS announcement confirms that, during Phase I (which commenced on January 6, 2020, and will continue for 90 days), DNA collection will be limited to the following:
- The US Border Patrol will implement the pilot project in the Detroit Sector. Individuals between the ages of 14-79 who are apprehended and processed within the Detroit Sector will be subject to DNA collection. The US Border Patrol (which is run by USCBP) typically patrols the area within 100 miles of the US border. Therefore, it appears as though only aliens who are caught illegally entering the United States in the Detroit area will be subject to DNA collection during Phase I.
- The USCBP Office of Field Operations will implement the pilot project at the Eagle Pass Port of Entry in southwestern Texas. Individuals between the ages of 18 and 79 who present themselves at the Eagle Pass port of entry for consideration of admissibility, and who are subject to further detention or proceedings, will be subject to DNA collection.
The Privacy Impact Assessment states that, during Phase I, USCBP will only collect DNA samples from:
- Criminal aliens; and
- Aliens, US citizens, and lawful permanent residents who are referred to prosecution.
It also states that the DNA population (i.e., the group subject to DNA collection) will remain the same throughout the pilot project. It therefore appears as though only the above individuals will be subject to DNA collection during the three-year pilot project. However, this may change after full implementation.
The Privacy Impact Assessment states that, once the pilot project is fully implemented, and if agreed upon between DHS and DOJ, the DNA population may be expanded beyond criminal aliens and aliens referred to prosecution to include:
- All criminal arrestees (including US citizens and lawful permanent residents);
- All aliens detained for processing under administrative proceedings and released on their own recognizance;
- All aliens detained for processing under administrative proceedings and who voluntary withdraw their application;
- All aliens subject to expedited removal, reinstatement of removal, or administrative removal; and
- All voluntary returns.
In other words, after full implementation of the pilot project, aliens who are detained and placed into removal proceedings could be subject to DNA collection, even if they are released on their own recognizance or allowed to withdraw their application. Aliens who receive an expedited removal order at the port of entry could also be subject to DNA collection at that time.
Fortunately, the Privacy Impact Assessment also states that USCBP will not collect DNA samples from the following individuals (among others), presumably even after full implementation of the pilot project:
- Individuals held at a port of entry during consideration of admissibility but who are not subject to further enforcement action;
- Individuals who withdraw their application for admission but who are not subject to further enforcement action; and
- Individuals refused admission under the Visa Waiver Program, but who are not subject to further enforcement action.
That being said, aliens who are formally denied admission to the United States (and who are not permitted to withdraw their applications for admission) are not specifically mentioned in this list of exempted individuals, even if they are not subject to further enforcement proceedings. This means that a significant number of Canadian citizens (and other foreign nationals) could still be subject to DNA collection once DHS's pilot project is fully implemented, if DHS and DOJ decide to expand the program to this group.
In conclusion, privacy-minded travellers who are concerned about having their DNA collected by USCBP should not be worried, at least for now. However, once the pilot project has been fully implemented, they should take care to ensure that they are not placed into removal proceedings. In addition, if DHS and DOJ later decide to expand DNA collection to individuals who are merely refused entry, travellers should be certain of their eligibility (at least to the extent possible) before they apply for admission to the United States.
1. 34 U.S.C. § 40702.↩
2.18 U.S.C. § 3559(a)(6).↩
3.28 C.F.R. § 28.12(b)(4).↩
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