Daily Dispatch 10/25/2019: And justice for...?

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InAlienable
Daily Dispatch

October 25, 2019

From NPR: Attorney General William Barr speaks at an event in Washington earlier this month. On Monday, he issued a proposed rule seeking to allow the federal government collect DNA samples from more than 740,000 immigrants every year.

The Justice Department's new DNA rule

This week, Attorney General Willia Barr announced a new rule to allow for DNA testing of hundreds of thousands of immigrants. From NPR:

The Justice Department is proposing to begin collecting DNA samples from hundreds of thousands of immigrants crossing the border, creating an enormous database of asylum-seekers and other migrants that federal officials say will be used to help authorities fight crime.

Attorney General William Barr issued the rule, which is set to be published in the Federal Register on Tuesday, with the expectation that federal authorities will gather DNA information on about 748,000 immigrants annually, including asylum-seekers presenting themselves at legal ports of entries.

In the proposed regulation, Barr describes the DNA sample as a "genetic fingerprint" that can uniquely identify a person, "but they do not disclose the individual's traits, disorders, or dispositions."

Legal permanent residents and those seeking to enter the country legally won't be affected by the new regulation. The rule will now be subject to a 20-day comment period.

What the new rule actually does is remove a provision of current law, The DNA Fingerprint Act of 2005, that allowed the Department of Homeland Security to waive requirements to collect DNA samples from certain classes of immigrants. Only the Attorney General can waive collection now. What this means is that virtually anyone detained by the U.S. government will be subject to DNA screening.

This summer we wrote about a pilot program investigating the feasibility of doing testing on such a large scale. The original program was used on select families and pitched as a means to verify if children were actually related to the people claiming to be family members. ANDE Corporation is the company that makes the Rapid DNA test that was used. It is not clear if this is the same test now being proposed for general use. But someone is going to make a lot of money on this new rule. The U.S. will detain close to a million people this year for some amount of time.

Silencing Immigration Judges and ICE officials

The Trump administration’s evolving immigration program is, among other things, the least transparent policy area we have - even as it is maybe the most talked about one. Among the many ways that this administration gets in the way of restricting access to information about what is actually happening in courts and in detention facilities is to silence immigration judges and other ICE officials. Four law professors have written about this in Slate:

When we’ve asked judges, ICE attorneys, and asylum officers to visit our classes, almost all have declined. They’ve told us they can’t speak with our classes even on their days off, even in their personal capacities, without prior clearance and approval from high-level supervisors—approval that is increasingly difficult to obtain. This silencing of line officers is a marked departure from past years. It is taking place across the country, and it is no coincidence. The administration has denied these civil servants permission to speak publicly. According to former immigration judge Jeffrey Chase, immigration judges “are not even allowed to speak at conferences or law schools, because the administration does not consider them qualified to speak on behalf of the agency or its policies.”

In relation to judges specifically, the implications are more alarming:

Since President Donald Trump took office, the jobs of immigration judges have become increasingly arduous and influenced by the president’s agenda. New immigration judges have been told in trainings that they are not just judges because they are “employees of the United States Department of Justice.” Essentially, they are being told to act as prosecutors in judges’ robes in a system that does not offer immigrants—even children—the right to counsel. They are under immense pressure to deny and deport immigrants quickly, in spite of constitutional due process requirements and the potential merit of their cases.

None of this is an accident: Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time. Decertification of the judges’ union would disempower adjudicators even more. The current campaign to dismantle independent decision-making and legal interpretation in the asylum system, and in our immigration courts generally, will carry consequences well beyond this administration’s lifespan. Free speech, especially by civil servants, is fundamental to a healthy democracy. Suppression of such free speech tilts us closer to an authoritarian state

Preview of Coming Article on Legal Implications of Family Separation

Legal scholars Carrie Cordero, Heidi Li Feldman and Chimène Keitner published a precis of an upcoming article that will appear in the Columbia Human Rights Review on the legality of the Trump administration’s family separation policy. From the preview:

While prior presidential administrations have certainly struggled with periodic migration and border security challenges, officials in the Trump administration revived a controversial proposal that had been considered briefly during the Obama administration, but quickly shelved as “too opprobrious and unpalatable.” Once implemented last year, the early effects of the family separation policy and practice were swift, and devastating: Children were separated from their parents or family members at the border as a consequence of a new prosecutive guideline from the Justice Department. Parents were given little or no information about where the children were relocated to, or when, if ever, the families would be reunited. While statistics available as of early fall 2019 indicate that over 4,000 children were separated from their parents at the southern border, the numbers continue to go up, including new information from the ACLU that more “tender age” children were separated than previously disclosed. It took advocacy litigation and a court order to begin the process of reunification, a process that continues even today.

As far as we know, until 2018, the U.S. government had not previously implemented a policy and practice of intentionally separating migrant and asylum-seeking families as a means of deterrence. 

As we have written about, the practice of family separation did not begin with Trump. What was at stake last year was the expansion and intentional use of family separation as a deterrent to migration. It was a frankly deplorable development, but one Trump’s team argued rested on legal foundation. The authors take issue with this.

Comprehensively assessing the law against family separation is a complex undertaking. The underlying practice—deliberate, harsh, and large-scale family separation as a deterrent to migration—is unparalleled in U.S. history, so it is not necessarily obvious which bodies of law apply, and how. As it turns out, many types of law prohibit this practice, though some could use bolstering by congressional action. Our article, therefore, is a broad survey of applicable areas of law with concrete discussion of how to use it. We look at an expansive range of currently applicable law, consider the viability of different specific legal approaches, and make an initial effort to identify the kind of federal legislation that could address the Trump administration’s family separation policies and practice beyond the important and consequential litigation that has already been brought. Lawyers, lawmakers, policy experts and citizens must work together to ensure that legitimate immigration law and border security enforcement objectives are achieved without resorting to policies and practices that lack sound legal grounding and take place at severe costs to the most vulnerable among us.