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Posted Saturday, January 10, 2009
Immigrant advocates decry new rules on courts, DNA
By The Associated Press
SANTA ANA, Calif. (AP) -- Civil liberties and immigrant rights advocates
expressed outrage over a Department of Justice rule that took effect Friday,
mandating federal agencies to collect DNA samples from anyone who is arrested
and foreigners detained by immigration authorities.
The rule aims to help federal law enforcement agencies solve and deter crimes by
expanding the country's DNA database, which is overseen by the FBI. The
government also hopes that sampling immigrant detainees will help law
enforcement hold them accountable for any crimes they committed in the United
The rule, which was proposed last year using authority granted by Congress,
sparked outcry from civil liberties advocates.
''We should not be taking DNA, which contains highly personal information, from
people merely upon suspicion they've done something wrong,'' said Larry Frankel,
state legislative counsel for the American Civil Liberties Union in Washington,
D.C. ''This completely reverses the notion someone is innocent until proven
Until now, the practice was limited to people convicted of felonies or certain
Justice officials have estimated the DNA rule would put 1.2 million DNA samples
into the federal DNA database each year.
Thirteen states already collect DNA samples from some people who had been
arrested, according to a 2008 survey by the National Conference of State
Legislatures. Nearly all limit the practice to arrests related to violent crimes
At the federal level, officials will take a cheek swab for DNA from arrestees
along with fingerprints regardless of the nature of the offense, according to
the Department of Justice.
It was not immediately clear which federal agencies were implementing the rule.
U.S. Customs and Border Protection has not begun doing so, said Lloyd Easterling,
an agency spokesman.
Several civil and immigrant rights advocates questioned whether immigration
enforcement agencies were prepared to carry out the sampling.
''I would be stunned if anybody in the immigration enforcement area was actually
doing this,'' said Barry Steinhardt, director of the ACLU's technology and
Other immigrants who are facing deportation because of shoddy work by their
attorney lost the right to get their cases reopened in a decision dated
Wednesday by Attorney General Michael Mukasey.
Charles Miller, a spokesman for the Department of Justice, could not say why
Mukasey issued the 33-page ruling at this time. Immigration attorneys said the
rule threatens immigrants' right to a fair hearing in a community already
vulnerable to fraud.
''People pretend to be lawyers and hang up a shingle and tell the client, 'I am
a lawyer and am going to represent you,' and then they don't,'' said Nadine
Wettstein, director of the American Immigration Law Foundation's Legal Action
Center. ''If that were to happen, this decision says, `Tough luck.'''
Nikhil Shah, a Los Angeles immigration attorney originally from India, said he
almost lost his chance at a green card because he was misled by a paralegal who
pretended to be an attorney and failed to properly submit his paperwork.
But Mark Krikorian, executive director of the Center for Immigration Studies,
said immigrants need to take responsibility in choosing an attorney. '
'The broad concept is completely valid. Deportation cases are not criminal
proceedings, therefore nobody has a right to any kind of attorney -- let alone a
good one,'' said Krikorian, whose group favors limitations on immigration.
How many could be affected by the Mukasey ruling wasn't clear. Immigration
courts do not track how many people seek to reopen cases because of inadequate
representation, said Susan Eastwood, a spokeswoman. The immigration court system
is separate from the criminal courts and are overseen by the Department of
''Our hope is a lot of these incredibly intrusive, borderline unconstitutional
actions are simply going to be stopped by the new administration,'' said Charles
Kuck, president of the American Immigration Lawyers Association.
Legislative records show that as a senator, President-elect Barack Obama
supported laws that authorized the DNA collection.
------ Associated Press writer Devlin Barrett in Washington contributed to this
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