U.S. continues to take DNA samples from asylum seekers at the border

A fresh wave of nervousness and excitement washes over the Maldonado family as the line for CBP One appointments begins to advance. (Corrie Boudreaux for Source NM)

CIUDAD JUÁREZ – It was well before dawn Sunday morning, when Olga Maldonado, her nieces Yulisa, Marcela Maldonado and Kevin Hernandez and the children, ages 3 to 10-years old, rose to prepare for their asylum meeting with the U.S. Customs and Border Protections.

"Nervous, but excited," was how Olga described her feelings, slipping on plain black sandals, before combing her daughter's hair and checking the bags with all of their papers again.

After months of trying, the family of eight Hondurans who fled San Pedro Sula in the past year, received one of the coveted 1,000 daily slots allowing asylum-seekers to get an appointment with immigration officials through the CBP One app.

After a bumpy ride from Anapra into downtown Ciudad Juárez, the family shared a tearful goodbye with Pan de Vida shelter director Pastor Ismael Martinez. They joined the line of over 200 people stretching along the fence before the entrance to the Paseo Del Norte at 6:45 a.m., as the sky began to glow bright yellow.

All CBP One appointments are scheduled for 7 a.m. at the El Paso crossing at the Paseo Del Norte Bridge, said Roger Maier, the CBP spokesman for New Mexico and El Paso. He said CBP can receive people crossing as early as 6:30 a.m. and said most appointments are confirmed, and "escorted to the CBP lobby by 7:30 a.m."

"There are very few no-shows," Maier wrote in an email.

On Sunday, Mexican officials allowed people to start lining up on the pedestrian bridge just after 7:10 a.m. The Maldonados, in the center of the line, showed documents and entered into the U.S. just after 7:45 a.m. Dozens of people waited behind them.

The sun crested over the edge of the horizon as they waited on the bridge. The children gazed out as the reflection blazed in the shallow pools on the Rio Grande, marveling at a pack of cyclists on the banks below.

"I’m so happy," Marcela said. "We’re finally here, arriving in El Paso, realizing our dream, it's the most beautiful feeling."

In an interview after the appointment, Olga Maldonado said the family received a COVID-19 vaccine, despite all of them having three rounds of the shot. All of the adults also gave a DNA sample from a cheek swab. The children, below the age of 14, were not required to give a sample.

DNA samples have become common at different agencies since 2019 said, attorney Sophia Genovese with the New Mexico Immigrant Law Center.

"CBP has been collecting DNA for a few years at the border, and the U.S. (Immigration and Customs Enforcement) has also been doing it at the local ICE office in Albuquerque," she said.

The family was released on parole Sunday afternoon, with a court date set for 2025.

There are two programs to test DNA of people in the U.S. immigration system, and both are relatively new.

One applies to people ages 14-79 and sends samples to the U.S. Federal Bureau of Investigation, for input into the federal Combined DNA Index System, called CODIS.

The other is the use of rapid-testing to determine parent-child relationships, which started under the Trump administration and continued into the Biden administration.

Olga Maldonado said she isn't concerned about failing that test.

"We were not worried because none of us have a [criminal] record," she said in a What'sApp message Tuesday.

But privacy and immigration advocates said these kinds of policies raise safety concerns for vulnerable people on the border, while also posing serious privacy questions for both the border and interior.

Saira Hussain is a senior staff attorney at the Electronic Frontier Foundation, an organization focusing on technology and the law. Hussain's expertise is examining immigration, race and surveillance in the U.S.

Privacy concerns are threefold, Hussain said. First, there's the collection of a physical sample – and how that's used and if it can be used again in the future without consent. Second, is how that data is stored, whether it is private and secure. Finally, it's how the data is shared. Some databases, like CODIS have extra privacy requirements and training, but other databases that access the same information could be less secure.

Taking DNA samples to use for CODIS adds a risk to people exercising their legal right to seek asylum, she said.

"The collection of DNA from people who are already marginalized as it is, is very concerning," Hussain said. "Especially when you consider who that information can be shared with, including foreign governments that people may be trying to escape persecution from."

Even though immigration detention is administrative and not criminal in nature, collecting DNA "adds a layer of criminality," she said, despite the fact that asylum is legal under international and federal law.

In 2019, the Department of Justice put forward a big rule change. The department removed an exception to a 2005 law to submit samples to the FBI, due to operational constraints. The new rules removed that exception for the Department of Homeland Security, which oversees CBP and ICE.

In 2020, DHS said it would collect DNA from anyone ages 14-79 in custody, who is arrested, facing charges, convicted, or detained by CBP or ICE (this can include non-citizens, lawful residents and U.S. citizens).

In a May 23 report from the Government Accountability Office, CBP officials told the agency the DNA sample collection will generally not include the exceptions — like non-citizens entering legally or being processed for lawful admission.

Since the program was launched in 2020, DHS has been rapidly sending DNA samples over to the FBI. In the first year, the agency sent 5,641 samples. In fiscal year 2022, that ballooned to 634,422 samples, or about 37% of the total people they encountered.

CBP officials did not respond by press time to a detailed list of questions about DNA testing people seeking asylum through CBP One appointments, including if the agency has any guidelines since their news release in 2020.

A second program, which first started in 2000, was expanded in 2019.

DHS granted a $5.2 million dollar contract to Bode Cellmark Forensics for a project to rapid DNA test parents and children to determine if they are related within a matter of hours. According to the CBP, the tests are destroyed after testing.

Hussain said there are serious questions about the accuracy of the technology with rapid DNA testing, and whether people could truly consent to getting their DNA taken.

"There was an understanding that if you refuse to submit your DNA to this test, then it could factor into whether a parent and child were detained together or separately," she said.

In press releases DHS officials claimed this would prevent child-smuggling.

However, Hussain and others found that most of the people tested were related. A further look at the non-related tests often showed kinship relationships Hussain said. Step-parents or adopted families had little to no recourse to challenge the tests.

"Underlying all this is the idea of what is the family and who qualifies as family," she said. "And is the way that the government is interpreting who is family, is that sufficient to start taking DNA from people?"

The current state of that program is murky.

CBP officials did not respond to questions about the status of the program. Last week, Republican congressional lawmakers wrote letters requesting Sec. of Homeland Security Alejandro Mayorkas to continue the program after reports that it ended on May 31, 2023.

Hussain said expanding surveillance on the border has consequences for the rest of the country, pointing to the "creep" of just collecting DNA from prior arrests or convictions to immigration custody, to lawfully going through asylum proceedings.

"Closer attention does need to be paid to the uses of technology to surveil and collect information from communities at the border," she said. "Because what happens at the border has repercussions for what happens in the interior."

Corrie Boudreaux contributed to the reporting of this article.

This story was produced by Source New Mexico, a States Newsroom affiliate.

by Danielle Prokop, Kansas Reflector June 8, 2023

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Danielle Prokop covers the environment and local government in Southern New Mexico for Source NM. Her coverage has delved into climate crisis on the Rio Grande, water litigation and health impacts from pollution. She is based in Las Cruces, New Mexico.