Although he was uncomfortable, David didn't push back when a US border officer in Texas told him to swab his cheek in order to collect his DNA.
David, who declined to give his full name fearing retaliation from US immigration authorities, was one of the few immigrants the Biden administration is currently allowing into the country to seek asylum. At official border crossings like in Brownsville, Texas, the US is allowing immigrants deemed to be especially vulnerable in Mexico to make their asylum cases.
David said he experienced harassment for being gay. But for every asylum-seeker like David, there are thousands the US is immediately sending back to dangerous Mexican border cities.
"I felt like I couldn't say anything because I was in the process of asking them for protection, and that the only thing I could do is cooperate so they could help me," David told BuzzFeed News. "At the moment, I didn't know if it was good or bad, I was just trusting the process, but afterwards I was left with a lot of questions."
The Customs and Border Protection (CBP) officer asked David to rub a swab on the inside of his cheeks and moments later placed it in a small envelope. It was a small portion of the three-hour process David had to undergo before being allowed into the US, but it left him uneasy because he didn't know why and where his information was going.
David's DNA was expected to be sent to the FBI’s Combined DNA Index System (CODIS), the result of a Trump-era rule that allowed the Department of Homeland Security to collect samples from asylum-seekers as part of the DNA Fingerprint Act of 2005. The rule that would allow for the collection of DNA had been widely reported, but its implementation on asylum-seekers at the border has caught immigration advocates off guard.
US immigration authorities said they are required to do this and that it has been a widespread practice since the end of last year, but advocates said they have only recently started hearing about DNA collection at the border and take issue with the fact that it’s being collected from some of the most vulnerable asylum-seekers at the border.
The DNA Fingerprint Act of 2005 directed federal law enforcement agencies to collect DNA from arrestees and from immigrants detained by the US. Initially, DHS had been exempt from collecting DNA from detained immigrants, but the Trump administration changed that by proposing a rule in October 2019 that took away the DHS secretary's authority to exclude certain groups, like detained immigrants.
Most people who request asylum at the US–Mexico border are being immediately sent back to Mexico or their home countries. It was a practice started by the former president Donald Trump at the beginning of the pandemic that the Biden White House has decided to keep in place, much to the frustration of immigrant advocates. The Trump administration cited the pandemic to invoke the obscure public health law, Title 42, when it announced the border expulsions last March.
As part of a federal lawsuit against the expulsions of immigrants, the ACLU negotiated an agreement with the government to allow some vulnerable people into the US like David. Lee Gelernt, the ACLU’s lead attorney in a lawsuit against the use of Title 42, said collecting DNA from these vulnerable immigrants was not mentioned in the negotiations and was recently told by the government that they are required to do it.
"We are investigating what's going on and hopefully we'll be able to push back on it," Gelernt told BuzzFeed News. "Taking DNA from asylum-seekers is highly problematic and we intend to investigate why it's being done."
In a statement, the DHS said it was required to collect DNA samples from everyone in its custody who has been arrested on federal charges and from immigrants detained under its authority in order to comply with the DNA Fingerprint Act of 2005.
"This is a requirement under the law, not a policy created by CBP," the federal agency said.
CBP began collecting DNA in January 2020 as part of a pilot program and its collection efforts were fully operational by the end of last year, DHS said.
It's not just vulnerable immigrants who are being exempt from Title 42 expulsions. Immigrants who had previously been forced to stay in Mexico under a different Trump administration policy, the Migration Protection Protocols (MPP), are also being swabbed as they are allowed into the US.
As part of its plan to roll back MPP, informally known as "Remain in Mexico," the Biden administration has been processing thousands of asylum-seekers who had been forced to stay in Mexico while their cases were completed. After registering with the United Nations High Commissioner for Refugees (UNHCR), the refugee agency gives immigrants a date to show up at an official border crossing where they are processed before being allowed into the US.
Erika Pinheiro, policy and litigation director with the immigrant advocacy group Al Otro Lado, said many asylum-seekers being processed in Tijuana are having their DNA sampled. Most are not told what the sample is for, Pinheiro added.
"One of our clients asked and CBP told them that it was 'in case they do anything bad, then the government will be able to find them,'" Pinheiro told BuzzFeed News.
In addition to collecting DNA, the DHS has been having immigrants install tracking apps on their phones in favor of having them wear ankle monitors, Pinheiro said.
"I see this as part of the larger effort to replace physical detention with something more insidious," Pinheiro said.
The Biden administration collecting DNA from immigrants at the border is contradictory to some of its other actions, Pinheiro noted. The administration recently announced it was abandoning a Trump-era proposal that would have made it so the government could request biometrics, including DNA, from immigrants who receive a benefit, like a green card or work permit.
An Office of the Inspector General report published in May called out CBP for not collecting DNA from people it arrested. The report noted that the DHS, and its agencies ICE and CBP, initially had an exemption for collecting DNA samples from immigrant detainees, unlike arrestees. However, the Trump administration's final rule change eliminated the exemption in April 2020.
In February 2017, a federal detention center in Houston collected a DNA sample from an immigrant who was incarcerated for illegal entry and sent the sample to the FBI. Two days after the DNA sample was uploaded into CODIS, the FBI received a match in connection with a 2009 homicide in Denver, the OIG report said. The immigrant had been previously arrested by ICE and CBP.
"If ICE or CBP had collected a DNA sample during those encounters, investigators could have received the investigative lead years earlier," the report stated. "DNA analysis is a powerful tool ... which helps bring the guilty to justice and protect the innocent, who might otherwise be wrongly suspected or accused."
Saira Hussain, an attorney with the Electronic Frontier Foundation, said collecting DNA from someone who was arrested or convicted of a crime is not the same as retrieving a sample from an asylum-seeker going through an official border crossing.
"It is very much conflating immigrants who are immigrating to this country with criminality," Hussain told BuzzFeed News. "Something the Trump administration tried to do over and over again."
David is currently in Texas but is planning to move to New York, where he will one day present his asylum case to an immigration judge. He still has questions about why his DNA was collected but is trying to focus on building a life in the US.
"I didn't come to the US to do anything bad. I came here seeking protection," David said. "I just hope that the small piece of my data I gave them isn't used against me in the future."