DOJ to collect migrant DNA again, after watchdog noted 'disturbing' noncompliance for nearly a decade

The Justice Department on Monday announced a proposed rule that would "restore" Attorney General Bill Barr's authority under the bipartisan DNA Fingerprint Act of 2005 to "authorize and direct the Department of Homeland Security (DHS) to collect DNA samples from the non-United States persons it detains."

This past August, Fox News exclusively reported that a top government watchdog alerted President Trump and Congress that Customs and Border Protection (CBP), through a "disturbing" pattern of misconduct, had endangered the public for nearly a decade by failing to comply with the law.

In announcing the proposed rule on Monday, the DOJ called the move a major step for law enforcement and said DHS would ensure that all federal agencies comply with the law going forward. The rule will go through a statutorily mandated public notice-and-comment period before becoming an enforceable regulation, officials said.

"The proposed rule change would help to save lives and bring criminals to justice by restoring the authority of the Attorney General to authorize and direct the collection of DNA from non-United States persons detained at the border and the interior by DHS, with the ultimate goal of reducing victimization of innocent citizens," Deputy Attorney General Jeffrey A. Rosen said in a statement.


"Today's proposed rule change is a lawful exercise of the Attorney General's authority, provided by Congress, to collect DNA samples from non-United States persons who are properly detained under the authority of the United States," Rosen added.

The U.S. Office of Special Counsel (OSC) said in the letter to Trump in August that CBP's "noncompliance with the law has allowed subjects subsequently accused of violent crimes, including homicide and sexual assault, to elude detection even when detained multiple times by CBP or Immigration and Customs Enforcement (ICE)."

Under the law, CBP was required to collect DNA from people in its custody, to be run against FBI violent-crimes databases. The procedure was separate from DNA collection designed to establish familial relationships among migrants at the border.

DHS officials had said they were operating under the determination that a waiver of the DNA collection requirements, which was established during the Obama administration and attributed to the government's limited resources, was in effect. A 2008 regulation, 28 C.F.R. § 28.12(b)(4), permitted DHS not to collect the samples after consulting with the attorney general in certain circumstances.


But, the Office of Special Counsel did not accept that DHS explanation for delaying the law’s implementation for so long, and said the law had been abused.

"It is disturbing that this would occur even once, let alone routinely, for approximately a decade," Special Counsel Henry J. Kerner wrote in a letter to Trump in August. "Many cold cases might have been solved -- and victims of violent crimes granted closure -- by now if CBP had complied with its obligations under the law."

One "troubling" case noted in the letter involved a suspect in a 2009 Denver homicide who had "several interactions" with law enforcement, including two arrests, but was allowed to go free until investigators finally collected a DNA sample in 2017.

In another instance, a suspect in "two particularly brutal" sexual assaults that occurred in 1997 eluded detection despite being in federal custody on nine separate occasions -- before finally being connected to the crime in March 2019, after a DNA sample was collected.

CBP's behavior constituted an "unacceptable dereliction of the agency's law enforcement mandate," Kerner wrote. Additionally, he claimed CBP's internal review of its own conduct, which cleared the agency of any unlawful activity, was "disingenuous."

The DOJ on Monday also acknowledged it's been working with DHS on a pilot program to collect DNA from non-U.S. residents.

"As with all other DNA samples that federal agencies collect under the authority of the bipartisan DNA Fingerprint Act, the DNA samples that DHS collects from its non-United States person detainees will be entered into the Federal Bureau of Investigation’s Combined DNA Index System (CODIS)," DOJ officials said. "The FBI’s laboratory has the capacity to handle the increased input from DHS, and its capabilities can be scaled up to meet additional capacity.  The FBI will provide DHS with the DNA collection kits, analyze the samples, and ensure that law enforcement agencies use the results in accordance with the FBI’s stringent CODIS privacy requirements."

A CBP whistleblower, in a formal complaint earlier this year, said the pilot program had been suspended under the Obama administration and derailed again under the Trump administration.

The whistleblower, Fred Wynn, specifically alleged that the DNA pilot program was put on hold during the Obama administration, and efforts to implement it under the Trump administration were derailed


“There is no current pilot program. It's basically dead in the water,” Wynn said.

Fox News' Jake Gibson contributed to this report.