Immigrant DNA tests questioned
Advocates fear data could be used for prosecutions
SAN FRANCISCO – The U.S. government’s plan to reunify immigrant children with their parents via DNA testing is an unusual but not unprecedented use of the swab-based tests, one shrouded in questions over who will have access to the individual genetic information.
Civil rights advocates are concerned that the DNA information would be used too broadly, such as in criminal prosecutions.
“If this was being done responsibly, they should have all of the authority to cite and operational details available. None of us should even have to ask,” said Jennifer Wagner, a Pennsylvania lawyer whose practice focuses on genetics and human rights.
The Trump administration said it would start DNA tests after a court order to reunite families. Under the “zero tolerance” immigration policy, nearly 3,000 children were separated from
their parents at the U.S.-Mexican border, provoking criticism by lawmakers and religious leaders. Trump administration officials defended the policy as a deterrent to illegal immigration.
The Department of Health and Human Services uses an unnamed supplier of DNA kits that it partnered with previously. The government has used DNA tests for paternity issues for more than a decade, including to match refugee families under the Obama administration, but not on such a scale.
The clock is ticking on a series of court-imposed deadlines to reunite all children separated from their parents by the end of the month. A government lawyer acknowledged in court Monday that authorities will miss the first deadline – to reunite about 100 migrant children under age 5 – by Tuesday. The American Civil Liberties Union countered that part of the reason for the delay has been how long it takes for the DNA tests to come back.
HHS Secretary Alex Azar said Thursday that his department uses DNA testing to confirm familial matches. The process for verifying a parental match using a DNA sample takes nearly a week, then it takes more days to finalize identification.
How it works
People at the Office of Refugee Resettlement swab inside the cheeks of children in the custody of that agency. Department of Homeland Security personnel or field teams deployed by HHS swab the cheeks of potential family members in the custody of Immigration and Customs Enforcement, according to a court filing last week by the government when it requested more time to finish the reunification process.
The cheek swabs are sent to a laboratory where the samples are analyzed, then sent to the HHS secretary’s operations center, which shares them with HHS grantees.
The department will use the results only for verifying parentage, Jonathan White of HHS said in the court filing.
Who owns the information?
Concern over what happens with the data after they’re used to reunify the families has dogged the process. Immigration and civil liberties advo- cates are worried that once in a government database, the genetic information could be used to pursue criminal cases against immigrants or penalize asylum seekers.
“We would say that DNA testing is intrusive and it shouldn’t be done. If it is going to be done in every case … the only thing we would ask is that it only be used for reunification and then expunged, because I don’t know that we want to create a DNA database of all these people,” said Lee Gelernt, a lawyer for the ACLU, which led a suit against the government's separation policy in court last week.
Immigration advocacy group RAICES Texas flagged another issue: The process entails taking a sample from a child who is too young to consent to provide the personally identifying material.
“They’re minors and don’t have a parent there to consent for them,” said Jennifer Falcon, communication director at RAICES Texas. “How could a 2-month-old agree to this?”
Justice Department lawyer Sarah Fabian defended the DNA process as needed to make sure children are matched up with their parents. Administration officials have warned that “parents” are sometimes human smugglers and that verifying documents provided by parents, children and their consulates can be time-consuming and fraught with fraud, she said.
The government also reviews documents and conducts interviews to help the matching process.
Will it work?
DNA testing isn’t a new domain for the U.S. government. HHS contracts with biotech companies for DNA sequencing equipment and materials, often related to research on diseases.
Many government labs could do this work, but they often “are so backed up with running their own samples, it could take months to do these analyses, even though the test itself requires only a few hours, so the government might contract the work,” said Celeste Berg, a professor of genome sciences at the University of Washington School of Medicine in Seattle.
The prospect of DNA testing has raised questions of accuracy. Could these tests distinguish between an aunt and mother? Genetics experts say probably yes – if the government collects enough information.
The most likely type of test would be a Short Tandem Repeat analysis or STR, the same type of testing the FBI does in criminal cases, said Wayne Grody, a pro- fessor of medical genetics at UCLA School of Medicine and director of the Clinical Genomics Center at UCLA Medical Center.
The test looks at areas of a person’s DNA known to have the genetic sequences repeat many times. Children get half their DNA from their mother and half from their father, including these repeating regions, allowing matches to be made with a high degree of reliability.
This isn’t a first
This type of testing for family reunification isn’t new to immigration issues but has never been used to this extent, Wagner said.
The U.S. Department of Citizenship and Immigration began discussing the use of DNA testing in 2000 to aid in family reunification cases, but there was a lack of clarity around whether it would be legal. After the passage of the DNA Fingerprinting Act of 2005, that began to change, and by 2008, rules had been issued that allowed the DNA testing of non-American detainees, Wagner said.
The tests could be done in such a way that all the genetic material is destroyed in the process and all that is retained is the answer to whether the child and purported parent are genetically matched, Wagner said.