1 Memorandum from Michael D. Cronin, Acting Exec. Assoc. Comm'r, Immigration & Naturalization Serv., Guidance on Parentage Testing for Family-Based Immigrant Visa Petitions (July 14, 2000) (on file with the American Immigration Lawyers Association) [hereinafter Cronin Memo].

2 Julia Ainsley, U.S. Has Nearly 3,000 Separated Migrant Kids, Will Use DNA to Find Parents, NBC News (July 5, 2018, 4:32 PM), https://www.nbcnews.com/politics/immigration/u-s-has-nearly-3-000-separated-migrant-kids-will-n888986 [https://perma.cc/EW2Q-L63D].

3 See discussion infra Sections II.A.3, II.B.2.

4 DNA-Sample Collection from Immigration Detainees, 84 Fed. Reg. 56,397 (proposed Oct. 22, 2019) (to be codified at 28 C.F.R. pt. 28).

5 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28).

6 Cronin Memo, supra note 1.

7 See William A. Kandel, Cong. Research Serv., R43145, U.S. Family-Based Immigration Policy 1 (2018) (noting that family-based immigration makes up two-thirds of all legal permanent immigration); Cronin Memo, supra note 1.

8 8 U.S.C. §§ 1151(b)(2), 1153(a) (2018).

9 U.S. Dep't of State, 9 Foreign Affairs Manual and Handbook 601.11, DNA Testing to Verify Relationships (2019); Policy Memorandum, U.S. Citizenship & Immigration Servs., DNA Evidence of Sibling Relationships 3 (Apr. 17, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-04-17-PM-DNA-Evidence-of-Sibling-Relationships.pdf [https://perma.cc/7EAE-6P2D]; Cronin Memo, supra note 1 (describing policy on DNA testing to establish parent-child relationships for family-based immigrant visa petitions involving intended beneficiaries located within the United States).

10 See Cronin Memo, supra note 1.

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Jonathan Todres & Daniela Villamizar Fink, The Trauma of Trump's Family Separation and Child Detention Actions: A Children's Rights Perspective, 95 Wash. L. Rev. 377, 380 n.6 (2020).

20 See Press Release, U.S. Dep't of Justice, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry [https://perma.cc/M2MK-JZ6Y]. Prior to zero tolerance, adults who expressed a credible fear of return were referred to the asylum system and the criminal charge of illegal entry was dropped. William A. Kandel, Cong. Research Serv., R45266, The Trump Administration's “Zero Tolerance” Immigration Enforcement Policy 1-2, 6 (2019) [hereinafter Cong. Research Serv., R45266].

21 See Cong. Research Serv., R45266, supra note 20, at 2. DHS did not publicly acknowledge its policy to separate immigrant children from their parents as a deterrence strategy until May 2018. Caitlin Dickerson, The Youngest Child Separated from His Family at the Border Was 4 Months Old, N.Y. Times (June 16, 2019), https://www.nytimes.com/2019/06/16/us/baby-constantine-romania-migrants.html [https://perma.cc/6H85-WZBD].

22 Cong. Research Serv., R45266, supra note 20, at 2.

23 See Debbie Nathan, Hidden Horrors of “Zero Tolerance”—Mass Trials and Children Taken from Their Parents, Intercept (May 29, 2018, 10:26 AM), https://theintercept.com/2018/05/29/zero-tolerance-border-policy-immigration-mass-trials-children/ [https://perma.cc/763N-Q4NB].

24 See id.

25 See Catherine E. Shoichet, The Next Family Separation Crisis: Finding Hundreds of Deported Parents, CNN (July 27, 2018, 9:35AM), https://www.cnn.com/2018/07/27/politics/deported-parents-search/index.html [https://perma.cc/B56L-HK38].

26 See id.

27 See, e.g., Todres & Villamizar Fink, supra note 19, at 383; Dickerson, supra note 21; Shoichet, supra note 25.

28 Ms. L. v. U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 1133, 1142-44 (S.D. Cal. 2018).

29 See id.; Todres & Villamizar Fink, supra note 19, at 385.

30 See Ainsley, supra note 2.

31 Press Release, U.S. Dep't of Health & Human Serv., HHS Is Executing On Its Mission With Care And Compassion (July 6, 2018), https://www.hhs.gov/about/news/2018/07/06/hhs-executing-its-mission-care-and-compassion.html [https://perma.cc/GL5M-DMU6]; Maya Rhodan, Some 3,000 Migrant Kids Are Still Separated from Their Parents. The Trump Administration Is Using DNA Tests to Match Them, Time (July 5, 2018), https://time.com/5331094/dna-tests-separated-families/ [https://perma.cc/D7DP-QVZ5] (describing Azar's announcement to the press on the day before).

32 Rhodan, supra note 31.

33 Ainsley, supra note 2.

34 See Dreby, Joanna, U.S. Immigration Policy and Family Separation: The Consequences for Children's Well-Being, 132 Soc. Sci. & Med. 245, 250 (2014)Google ScholarPubMed (describing how forced parent-child separations due to immigration enforcement cause great anxiety and destabilization for families); id. (noting that parental choices to migrate to the United States without their children affect those children differentially and, typically, less acutely).

35 Oliphant, Erin N. & Terry, Sharon F., Reuniting Families Using Genetic Testing?, 22 Genetic Testing & Molecular Biomarkers 453, 453 (2018)CrossRefGoogle ScholarPubMed.

36 See Daniella Silva, DNA Tests for Separated Families Slammed by Immigration Advocates, NBC News (July 5, 2018, 10:04 PM), https://www.nbcnews.com/news/us-news/dna-tests-separated-families-slammed-immigration-advocates-n889161 [https://perma.cc/RC3K-43EA].

37 See Oliphant & Terry, supra note 35, at 454 (describing lack of transparency in the collection and storage of genetic information by HHS); Silva, supra note 36 (illuminating question as to necessity of genetic testing for reunification).

38 See, e.g., Lee, Catherine & Voigt, Torsten H., DNA Testing for Family Reunification and the Limits of Biological Truth, 45 Sci. Tech. & Hum. Values 430, 447 (2020)CrossRefGoogle Scholar (introducing the concept of social validity to argue that “DNA testing does not come closer to defining what a true family is.”); Farahany, Nita et al., Ethical Guidelines for DNA Testing in Migrant Family Reunification, 19 Am. J. Bioethics 4, 4 (2019)CrossRefGoogle ScholarPubMed (discussing the international debate among bioethicists, geneticists, and practitioners over the new HHS policy); Rhodan, supra note 31 (discussing advocates' fury); Opinion, DNA Testing is Not the Way to Reunite Families, Balt. Sun (July 2, 2018), https://www.baltimoresun.com/opinion/readers-respond/bs-edrr-immigrant-dna-letter-20180702-story.html [https://perma.cc/6CSB-V746] (opposing HHS policy as geneticists, genetic counselors, and ethicists).

39 See Farahany et al., supra note 38 at 4-5 (pointing out that DNA testing has long been used in family immigration contexts and that DNA testing may reunify families); see also Rhodan, supra note 31 (quoting one advocate calling DNA testing in this context the “grossest violation of human rights”).

40 Order Following Status Conference at 3, Ms. L. v. U.S. Immigration & Customs Enf't, No. 18cv428 DMS (MDD) (S.D. Cal. July 10, 2018).

41 Id. at 3 (citing Parties Proposal on Office of Refugee Resettlement Release Process at 7-8, Ms. L. v. U.S. Immigration & Customs Enf't, No. 18cv428 DMS (MDD) (S.D. Cal. July 9, 2018)).

42 See More Than 5,400 Children Split at Border, According to New Count, NBC News (Oct. 25, 2019), https://www.nbcnews.com/news/us-news/more-5-400-children-split-border-according-new-count-n1071791 [https://perma.cc/939F-DRE8]. Thousands of other children have been separated from their families either before or after zero tolerance, and many remain in custody. Id.

43 See Julia Ainsley, Family Separation is Back for Migrants at the U.S./Mexican Border, Say Advocates, NBC News (May 15, 2020), https://www.nbcnews.com/politics/immigration/family-separation-back-migrants-u-s-mexican-border-say-advocates-n1208186 [https://perma.cc/VPM2-UBNX] (describing a recently implemented process in which ICE permits parents who are detained with their children to apply for their minor children to be released to family members, sponsors, or ORR while the parents remain in ICE detention); Jeremy Stahl, Why Did the Government Separate This Family? Slate (May 7, 2020), https://slate.com/news-and-politics/2020/05/family-separation-salvador-rosita.html [https://perma.cc/K88RAX69] (stating that more than 1,150 children have been separated from the parents at the border between June 2018 and March 2020).

44 See Stahl, supra note 43 (noting that family separations are legally permitted in cases of alleged communicable disease and parental fitness as well).

45 See Riane Roldan & Alana Rocha, Family Separations Aren't Over. As Many as Five Kids Per Day Are Separated from Their Parents at the Border., Tex. Trib. (July 12, 2019, 12:00AM), https://www.texastribune.org/2019/07/12/migrant-children-are-still-being-separated-parents-data-show/ [https://perma.cc/Z3U8-8UPZ] (explaining that children are sometimes released from custody into care of a family member); see also Lomi Kriel, The Trump Administration Is Rushing Deportations of Migrant Children during Coronavirus, ProPublica (May 18, 2020), https://www.propublica.org/article/the-trump-administration-is-rushing-deportations-of-migrant-children-during-coronavirus [https://perma.cc/NHY4-WP3C] (explaining the process by which family members of detained children seek their release, which includes a home study and fingerprint checks).

46 See Dep't of Homeland Sec., Privacy Impact Assessment for the Rapid DNA Operational Use 1 (2019), https://www.dhs.gov/publication/dhsicepia-050-rapid-dna-operational-use [https://perma.cc/DQ7T-2UYN] [hereinafter PIA for Rapid DNA].

47 Id.; see Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997) (governing the treatment of children in federal custody).

48 See Hearing on Oversight of Immigration Enforcement and Family Reunification Before the S. Comm. on the Judiciary, 115th Cong. 6 (2018) (statement of Matthew T. Albence, Exec. Associate Director, Enf't & Removal Operations, U.S. Immigration & Customs Enf't, Dep't of Homeland Sec.), https://www.judiciary.senate.gov/imo/media/doc/07-31-18%20Albence%20Testimony.pdf [https://perma.cc/Z43E-83VG] (“[C]urrent laws and court rulings which favor the release of family units and [unaccompanied alien children [UACs]] often require the federal government to release illegal alien families and UACs into communities across the United States.”).

49 See PIA for Rapid DNA, supra note 46, at 9, 16 (“The DNA is being collected to confirm or refute a claimed biological parent-child relationship. ICE will use the results to identify family unit fraud at U.S. border processing stations.”).

50 News Release, U.S. Dep't of Homeland Security, U.S. Immigration & Customs Enf't, ICE Awards New Contract for Rapid DNA Testing at Southwest Border, Expands Pilot Program (June 18, 2019), https://www.ice.gov/news/releases/ice-awards-new-contract-rapid-dna-testing-southwest-border-expands-pilot-program [https://perma.cc/3JFJ-MJAL].

51 Id.

52 PIA for Rapid DNA, supra note 46, at 1.

53 Id. at 3-6.

54 Id. at 4.

55 Id.

56 Id. at 8.

57 Id.

58 Id. at 9.

59 Kalhan, Anil, Immigration Surveillance, 74 Md. L. Rev. 1, 69-70 (2014)Google Scholar.

60 See id. at 25-26.

61 See Andorra Bruno, Cong. Research Serv., RL31269, Refugee Admissions and Resettlement Policy 7 (2018).

62 Id.

63 Id.

64 Memorandum from Prakash Khatri, Ombudsman, U.S. Citizenship & Immigration Servs., to Emilio Gonzalez, Dir., U.S. Citizenship & Immigration Servs. 1 (Apr. 12, 2006), https://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_26_DNA-04-13-06.pdf [https://perma.cc/FM32-WPRD] (suggesting “a recommendation to accept DNA test results as secondary evidence of family relationship, to grant authority to directors to require DNA testing and to initiate a DNA testing pilot project to study the impact of requiring DNA testing as evidence of family relationship”).

65 See 34 U.S.C. § 40702(a)(1)(A) (2018); see also DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety Act of 2006, 73 Fed. Reg. 21,083, 21,083-84 (proposed Apr. 18, 2008) (to be codified at 28 C.F.R. pt. 28).

66 34 U.S.C. § 40702(b).

67 Combined DNA Index System (CODIS), Fed. Bureau of Investigation, https://www.fbi.gov/services/laboratory/biometric-analysis/codis [https://perma.cc/FZF2-3B3J] (last visited Apr. 14, 2020).

68 28 C.F.R. § 28.12(b) (2019) (defining “non-United States persons” as “persons who are not United States citizens and who are not lawfully admitted for permanent residence”).

69 Id.

70 Id.

71 See Dep't of Homeland Sec., Privacy Impact Assessment for the CBP and ICE DNA Collection 1 (2020) [hereinafter PIA for DNA Collection] (citing Letter from Janet A. Napolitano, Sec'y, Dep't of Homeland Sec., to Eric H. Holder, Jr., Att'y Gen. (Mar. 22, 2010)).

72 DNA-Sample Collection from Immigration Detainees, 84 Fed. Reg. 56,397, 56,397 (proposed Oct. 22, 2019) (to be codified at 28 C.F.R. pt. 28).

73 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,483 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28).

74 Id. at 13,488.

75 News Release, U.S. Dep't of Homeland Security, U.S. Customs & Border Prot. (Jan. 6, 2020), https://www.cbp.gov/newsroom/national-media-release/cbp-assess-collection-dna-samples [https://perma.cc/M3CN-MUEZ].

76 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,483 (Mar. 9, 2020); see Merrit Kennedy, Trump Administration Poised To Start Collecting DNA From Immigration Detainees, Nat'l Pub. Radio (Mar. 6, 2020, 5:25 PM), https://www.npr.org/2020/03/06/812940401/trump-administration-poised-to-start-collecting-dna-from-immigration-detainees [https://perma.cc/QS7R-EX35].

77 Jennifer Lynch, Immigration Policy Ctr., From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond 3, 7-8 (2012) (explaining the privacy issues resulting from the expansion of DNA surveillance).

78 Id. at 9.

79 See id. at 12-13.

80 Elec. Frontier Found., Comment Letter on Proposed Rule for DNA-Sample Collection from Immigrant Detainees (Nov. 12, 2019) [hereinafter EFF Comment].

81 Lynch, supra note 77, at 7-8.

82 See U.S. Dep't of Justice, Combined DNA Index System Operational and Laboratory Vulnerabilities, 3-6 (2006) (describing the gradual expansion of DNA collection for criminal justice purposes through federal and state legislation).

83 See Lynch, supra note 77, at 12 (summarizing Fourth Amendment jurisprudence on biometrics collection).

84 See, e.g., Henry T. Greely, The Supreme Court and Mandatory Collection of DNA from Arrestees – “Stay” Tuned!, Stan. L. Sch. Blogs: L. & Biosciences Blog (July 22, 2012), https://law.stanford.edu/2012/07/22/the-action-inaction-distinction-before-nfib-v-sebelius/ [https://perma.cc/5F5S-BT8Y] (summarizing court decisions considering the constitutionality of compulsory DNA sampling from people arrested for crimes).

85 Maryland v. King, 569 U.S. 435, 465-66 (2013).

86 Id. at 463-64.

87 Kalhan, supra note 59, at 28 (quoting John Gilliom & Torin Monahan, SuperVision: An Introduction to the Surveillance Society 2 (2013)).

88 Id.

89 Id. at 30.

90 Id. at 32.

91 See id. at 37 (describing complementary information systems used to track movement, including GPS systems, cellular telephone location data, and automated license plate readers).

92 Id. at 39.

93 See id. at 30-31 (noting that IDENT stores information about some U.S. citizens as well, namely those “enrolled in DHS' registered traveler programs or who have adopted children from abroad,” or those who were fingerprinted before naturalizing).

94 See, e.g., Jack Corrigan, Legacy Systems Held DHS' Biometrics Programs Back. Not Anymore., Nextgov (Oct. 3, 2019), https://www.nextgov.com/it-modernization/2019/10/legacy-systems-held-dhsbiometrics-programs-back-not-anymore/160347/ [https://perma.cc/4KAX-JQNP].

95 Kalhan, supra note 59, at 31-32.

96 See, e.g., Hamed Aleaziz, ICE Is Now Fingerprinting Immigrants as Young as 14 Years Old, BuzzFeed News (Feb. 6, 2020, 7:42 PM), https://www.buzzfeednews.com/article/hamedaleaziz/ice-immigration-customs-fingerprinting-refugees-teens [https://perma.cc/LV7V-4X3J]. CBP has discretion to collect fingerprints from noncitizens under the age of 14 “in potentially criminal situations.” PIA for DNA Collection, supra note 71, at 4 n.12.

97 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,487 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28). Regarding international travelers who are being inspected at or near the border, the Fourth Amendment does not provide protection from a routine, suspicion-less, warrantless search, so long as the search is nonintrusive. See United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (describing the border exception, a doctrine that holds that a sovereign's national security interests at the border outweigh the privacy interests of the international traveler); see also DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. at 13,489.

98 See DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. at 13,483 (describing the main legal and policy reasons supporting DNA collection from immigration detainees as the ability to identify guilty and innocent parties); see also id. at 13,487 (summarizing the governmental interests served by DNA collection from immigration detainees as “identification of persons in custody, facilitating safe and secure custody, informing decisions concerning detention and release pending further proceedings, clearing the innocent, and bringing the guilty to justice”); id. at 13,488 (stating that collecting DNA from the broadest class permitted under the law “maximizes [the law's] value in promoting public safety”).

99 See Kalhan, supra note 59, at 59 (describing how immigration surveillance is increasingly “decoupling the territorial border of the United States from… its migration border: the set of boundary points at which nation-states authorize individuals to enter or be admitted, prevent or allow their entry or admission, or subject them to possible expulsion”).

100 Id. at 60.

101 See id. at 17-22.

102 See id. at 23-25.

103 See id.

104 See id. at 19.

105 Lynch, supra note 77, at 7.

106 See Oliphant & Terry, supra note 35, at 454.

107 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,485 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28).

108 See, e.g., Stephen S. Hall, Hidden Treasures in Junk DNA, Sci. Am. (Oct. 1, 2012), https://www.scientificamerican.com/article/hidden-treasures-in-junk-dna/ [https://perma.cc/X4S9-ND9Y].

109 Lynch, supra note 77, at 7-8.

110 Id. at 8 (quoting United States v. Kriesel, 508 F.3d 941, 948 (9th Cir. 2007) (“The concerns about DNA samples being used beyond identification purposes are real and legitimate.”)).

111 See, e.g., Daniel I. Morales et al., Opinion, DNA Collection at the Border Threatens the Privacy of All Americans, N.Y. Times (Jan. 23, 2020), https://www.nytimes.com/2020/01/23/opinion/dna-collection-border-privacy.html [https://perma.cc/QT6P-4U39] (suggesting that verification of family relationships and mitigation of future criminal risk are pretexts for the new DOJ policy).

112 Kalhan, supra note 59, at 70-71.

113 Lynch, supra note 77, at 9; see also Morales et al., supra note 111 (“A comprehensive DNA database may lead law enforcement to lean even more heavily on genetic technology. But forensic genetics can point to the wrong suspect.”).

114 See Lynch, supra note 77, at 9; see also Morales et al., supra note 111.

115 Lynch, supra note 77, at 9.

116 Id. at 9 (discussing the Secure Communities program that shares information between state and local law enforcement and immigration agencies).

117 Id. at 10-11.

118 EFF Comment, supra note 80, at 5.

119 Id.

120 Id.

121 See DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,483 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28).

122 This characterization derives from the description of a “class differential” in privacy by criminal justice and poverty law scholars, that is, people of different classes have different reasonable expectations of privacy from warrantless government searches and seizures and people from lower economic classes are more likely to suffer intrusions of privacy by the government. See Gilman, Michele Estrin, The Class Differential in Privacy Law, 77 Brook. L. Rev. 1389, 1392-93 (2012)Google Scholar (citing Slobogin, Christopher, The Poverty Exception to the Fourth Amendment, 55 Fla. L. Rev. 391, 401-05 (2003)Google Scholar).

123 Growth in ICE Detention Fueled by Immigrants with No Criminal Conviction, TRAC Immigration (Nov. 26, 2019), https://trac.syr.edu/immigration/reports/583/ [https://perma.cc/F5BG-KH2W] (indicating that only 36% of individuals in ICE had a criminal conviction).

124 See DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. at 13,484 (claiming that “most immigration detainees are held on the basis of conduct that is itself criminal”).

125 EFF Comment, supra note 80, at 2.

126 Morales et al., supra note 111.

127 Id.

128 EFF Comment, supra note 80, at 8 (citing Jason Silverstein, The Dark Side of DNA Evidence, Nation (Mar. 27, 2013), https://www.thenation.com/article/dark-side-dna-evidence/ [https://perma.cc/Y5C4-S7AZ] (“Black individuals made up 40 percent of profiles in CODIS[.]”).

129 See Johnson, Thomas L. & Heilman, Cheryl Widder, Racial Disparity in the Criminal Justice System, 58 Bench & B. Minn. 29, 29 (2001)Google Scholar.

130 EFF Comment, supra note 80, at 8 (noting that the addition of “750,000 DNA profiles of immigrant detainees annually will undoubtedly further skew the racial disparities apparent in CODIS”).

131 See, e.g., David Lazarus, Cybersecurity Incidents Spark the Call for Encrypted Data, GovTech.com (Oct. 4, 2017), https://www.govtech.com/news/Consumer-Confidential-A-Breach-Too-Far-Encrypt-Our-Data.html [https://perma.cc/W52E-V75V] (discussing security breaches involving corporate and government databases); id. (“Experts generally acknowledge that it's impossible to keep hackers at bay.”).

132 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,489 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28) (stating, in response to comments raising this concern, that the DNA information will be “subject to the privacy and use restrictions of CODIS [and] kept in secure storage by the FBI”). The new regulation describes how DNA profiles in CODIS are delinked from personally identifiable information so that unauthorized disclosures of DNA information would not be traceable to individuals. Id.

133 Staff of S. Comm. on Homeland Sec. & Gov't Affairs: Permanent Subcomm. on Investigations, 116th Cong., Rep. on Federal Cybersecurity: America's Data at Risk 7 (2019) (noting that DHS “failed to address cybersecurity weaknesses for at least a decade”).

134 David Alexander, 5.6 Million Fingerprints Stolen in U.S. Personnel Data Hack: Government, Reuters (Sept. 23, 2015, 11:50 AM), https://www.reuters.com/article/us-usa-cybersecurity-fingerprints/5-6-million-fingerprints-stolen-in-u-s-personnel-data-hack-government-idUSKCN0RN1V820150923 [https://perma/cc/LD55-6MJG].

135 See Kalhan, supra note 59, at 41-53.

136 See U.S. Dep't Homeland Sec., Immigration & Customs Enf't, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens 1-3 (2009). In 2014, Secure Communities was replaced with a similar program called the Priority Enforcement Program (PEP). Memorandum from Jeh Charles Johnson, Sec'y, Dep't of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf't (Nov. 20, 2014). It was later reinstated by the Trump Administration in 2017. Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017).

137 Lynch, supra note 77, at 3.

138 See, e.g., Dep't of Homeland Sec., Fact Sheet: DHS Agreements with Guatemala, Honduras, and El Salvador 1 (2019) (explaining that DHS arrangements with Guatemala, Honduras and El Salvador “aim[] to enhance cooperation between DHS and Northern Triangle countries to prevent and combat crime and other threats to public security, by expanding biometric data collection and information sharing”).

139 Lynch, supra note 77, at 3.

140 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,491 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28). In the Final Rule, the Department of Justice states that, “The United States does not comply with [Interpol] requests [for biometric information] if it believes they are made for oppressive or improper purposes.” Id. However, once the information is shared, there is no way for the Department of Justice to control how it is used. See id.

141 Sui-Lee Wee, China Uses DNA to Track Its People, with the Help of American Expertise, N.Y. Times (Feb. 21, 2019), https://www.nytimes.com/2019/02/21/business/china-xinjiang-uighur-dna-thermo-fisher.html [https://perma.cc/JAD9-LEJL].

142 See, e.g., Andrew McCormick, One Uighur Man's Circuitous Journey to Safety, Nation (Jan. 13, 2020), https://www.thenation.com/article/world/muslim-uighur-china-asylum/ [https://perma.cc/N73M-6PD3] (describing one Uighur-native's journey to finding refuge in the United States after facing religious persecution in China).

143 See, e.g., Sarah Stillman, When Deportation is a Death Sentence, New Yorker (Jan. 8, 2018), https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence [https://perma.cc/E9FY-STUL] (recounting cases of “people who had been deported to their deaths or to other harms” in Mexico and Central America).

144 See Walter A. Ewing et al., American Immigration Council, The Criminalization of Immigration in the United States 10, 20 (2015).

145 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,488 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28).

146 See id. at 13,485 (noting that “policies favor[] increased prosecution for immigration violations”).

147 See, e.g., Srikantiah, Jayashri & Sinnar, Shirin, White Nationalism as Immigration Policy, 71 Stan. L. Rev. 197, 198-99 (2019)Google Scholar (recounting Donald Trump's statements disparaging various groups of nonwhite immigrants, including characterizing Mexican migrants as “rapists” and Middle Eastern and Muslim immigrants as terrorists).

148 See, e.g., Statement from President Donald J. Trump, The White House (Sept. 5, 2017), https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-7/ [https://perma.cc/FR55-8MDA] (ending Deferred Action for Childhood Arrivals).

149 See, e.g., Adeel Hassan, Hate-Crime Violence Hits 16-Year High, F.B.I. Reports, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/hate-crimes-fbi-report.html [https://perma.cc/W8FRNAR9].

150 Morales et al., supra note 111.

151 Id.

152 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. at 13,490.

153 Id. at 13,490 (citing DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. 74,932, 74,937 (Dec. 10, 2008) (to be codified at 28 C.F.R. pt. 28)).

154 Id. at 13,488.

155 Id. (emphasis added).

156 Id. at 13,491 (“CODIS's functions …. also include creating a permanent DNA record for the individual, to which a match may result if he later commits a murder, rape, or other crime and DNA from that offense is searched against CODIS. The latter critical function would be lost if DNA profiles were expunged[.]”).

157 See id. at 13,489-90.

158 Id. at 13,490.

159 See Michelle Hackman, Workplace Immigration Inquiries Quadruple Under Trump, Wall St. J. (Dec. 5, 2019, 8:00 AM), https://www.wsj.com/articles/workplace-immigration-inquiries-quadruple-under-trump-11575550802 [https://perma.cc/9TP8-Z6Y5]; Sarah Ruiz-Grossman, ICE Dramatically Increased Workplace Arrests of Undocumented Immigrants in 2018, Huffington Post (Dec. 12, 2018), https://www.huffpost.com/entry/ice-immigration-arrests-work-undocumented-immigrants_n_5c105b3fe4b0ac537179c247 [https://perma.cc/73RQ-KLEU].

160 Miriam Jordan, Family Separations May Have Hit Thousands More Migrant Children Than Reported, N.Y. Times (Jan. 17, 2019), https://www.nytimes.com/2019/01/17/us/family-separation-trump-administration-migrants.html [https://perma.cc/LTA8-56L9].

161 Adam Liptak & Zolan Kanno-Youngs, Supreme Court Revives ‘Remain in Mexico’ Policy for Asylum Seekers, N.Y. Times (Mar. 11, 2020), https://www.nytimes.com/2020/03/11/us/supreme-court-mexico-asylum-seekers.html [https://perma.cc/FNT5-XHJT].

162 Dara Lind, The Horrifying Conditions Facing Kids in Border Detention, Explained, Vox (June 25, 2019, 1:10 PM), https://www.vox.com/policy-and-politics/2019/6/25/18715725/children-border-detention-kids-cages-immigration [https://perma.cc/B72G-YLYE].

163 Johnathan Lemire et al., White House Considering Dramatic Expansion of Travel Ban, Associated Press (Jan. 11, 2020), https://apnews.com/753968e412fab06e6fb8180e7ac98d47 [https://perma.cc/AWK8-ATXZ].

164 Press Release, U.S. Dep't of Homeland Security, DHS Implements Inadmissibility on Public Charge Grounds Final Rule (Feb. 24, 2020), https://www.dhs.gov/news/2020/02/24/dhs-implements-inadmissibility-public-charge-grounds-final-rule [https://perma.cc/S7NB-69C4].

165 Louis Nelson, Trump: Criminals Will Be Deported First, Politico (Nov. 13, 2016, 12:08 PM), https://www.politico.com/story/2016/11/donald-trump-immigrants-criminals-231293 [https://perma.cc/4YPR-LUQU].

166 See Muzaffar Chishti & Michelle Mittelstadt, Unauthorized Immigrants with Criminal Convictions: Who Might Be a Priority for Removal?, Migration Pol'y Inst. (2016), https://www.migrationpolicy.org/news/unauthorized-immigrants-criminal-convictions-who-might-be-priority-removal (estimating that 820,000 unauthorized immigrants living in the United States in 2015 had criminal convictions).

167 DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. 13,483, 13,485 (Mar. 9, 2020) (to be codified at 28 C.F.R. pt. 28).

168 See EFF Comment, supra note 80, at 1.

169 PIA for Rapid DNA, supra note 46, at 3.

170 EFF Comment, supra note 80, at 3-4 (noting that increased collection of DNA samples from crime scenes is more strongly related to crime-solving than adding profiles to DNA databases) (citations omitted). DOJ acknowledges, in the Final Rule, that both types of information are necessary in order for CODIS to operate effectively. DNA-Sample Collection from Immigration Detainees, 85 Fed. Reg. at 13,488.

171 See, e.g., Michelangelo Landgrave & Alex Nowrasteh, Cato Inst., Criminal Immigrants in 2017: Their Numbers, Demographics, and Countries of Origin 7 (2019) (finding that undocumented immigrants are less likely to be incarcerated than the general population); Alex Nowrasteh, Cato Inst., Criminal Immigrants in Texas: Illegal Immigrant Conviction and Arrest Rates for Homicide, Sex Crimes, Larceny, and Other Crimes 2-3 (2018) (finding that undocumented immigrants were convicted of fewer crimes than native-born Texans); Light, Michael T. & Miller, Ty, Does Undocumented Immigration Increase Violent Crime?, 56 Criminology 370, 370 (2018)CrossRefGoogle Scholar (finding that undocumented immigration is not associated with increases in violent crime); Anna Flagg, Is There a Connection Between Undocumented Immigrants and Crime?, Marshall Project (May 13, 2019, 5:00 AM), https://www.themarshallproject.org/2019/05/13/is-there-a-connection-between-undocumented-immigrants-and-crime [https://perma.cc/6PLL-VWVY]; Michael Maciag, The Mythical Link Between Immigrants and High Crime Rates, Governing (Mar. 2, 2017), https://www.governing.com/topics/public-justice-safety/gov-undocumented-immigrants-crime-pew.html [https://perma.cc/XV39-RJYU] (finding similar rates of violent crime and lower rates of property crime in metropolitan areas with larger numbers of undocumented residents).

172 Abigail Hauslohner, U.S. Immigration Authorities Will Collect DNA from Detained Migrants, Wash. Post. (Mar. 6, 2020, 2:59 PM), https://www.washingtonpost.com/immigration/us-immigration-authorities-will-collect-dna-from-detained-migrants/2020/03/06/63376696-5fc7-11ea-9055-5fa12981bbbf_story.html [https://perma.cc/3JHG-4TDA].

173 See Barata, Llilda P. et al., What DNA Can and Cannot Say: Perspectives of Immigrant Families About the Use of Genetic Testing in Immigration, 26 Stan. L. & Pol'y Rev. 597, 600 (2015)Google ScholarPubMed.

174 Id. at 632-633.