DNA testing at the border is dangerous

DNA testing at the border is dangerous

On April 30, 2019, DHS announced it would start DNA testing to establish family relationships at the border in an alleged effort to “target human smuggling,” and “prevent children from being exploited by human traffickers” who “skirt immigration laws.”

This reasoning is so ill-conceived and blatantly false that it should be dismissed out hand. Here are the ways in which this program is extremely dangerous and misleading:

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First, shared DNA cannot and does not prove or go any way towards proving human trafficking or smuggling. All DNA can tell us is whether a person is or is not the biological parent of a child. For decades, UNHCR and countries of the world interested in protecting refugee children have understood that it is far safer for unaccompanied children to travel with others. This program would strip that safety from them.

Second, let’s say the DNA test determines that an alleged parent and child are not related. DHS thinks this will go some way towards providing proof of smuggling or trafficking. It won’t. Human smuggling and human trafficking have legal definitions. They aren’t interchangeable, no matter how many times this administration attempts to conflate the two.

The federal government has been prosecuting biological parents for smuggling their own children, even though a waiver for parents exists, so why do they need a test to prosecute smuggling? They don’t. For a prosecutor to prove human trafficking, they must prove force, fraud or coercion for the purpose of exploitation, or that a minor was induced to perform a commercial sex act. Knowing whether the adult and child share DNA tells a prosecutor so little as to be worthless towards securing a prosecution for human trafficking.

Third, where is this testing going to happen and how will the results be shared? If DHS finds no shared DNA and therefore thinks the child might be trafficked (even though these two factors have no correlation whatsoever), are they going to send an alleged victim and trafficker back to Mexico, where they have no jurisdiction to prosecute the alleged trafficker and protect the alleged victim? Will the federal government jail the alleged perpetrator on such slim evidence that it would never suffice to make a case for U.S. attorneys to prosecute?

Will we separate the child from the adult and if so, where will we put the child and who profits? Multitudes of children have died and suffered sexual abuse in federal government custody. Will we put the child someplace where a private attorney might assist them with applying for a T visa or other forms of relief available to alleged victims of crime, abandonment or human trafficking? Given how challenging the federal government is making it for attorneys to assist asylum seekers, that seems exceedingly unlikely.

Or, let’s say that a family is traveling together and CBP are the ones to tell a parent that he is not the biological parent of the child he believes to be his? Is this the sort of environment in which we would want a parent to learn this sensitive and irrelevant, information?

Finally, do we really want to give the agency responsible for child separation, baby jails and harassment and detention of advocates access to DNA; DNA that has no conceivable value for the purpose it is alleged to determine?

The vast majority of human trafficking involves severe labor exploitation. Repeatedly preying on the fears of child abduction for sex trafficking makes it virtually impossible for law enforcement to recognize actual victims of human trafficking standing right in front of them.

It is repugnant that this administration wields this important issue of human trafficking as a prop to scare the electorate. The bipartisan support that human trafficking has enjoyed and the reliability of the visceral reaction invoked by raising the specter of children abducted for sexual exploitation has led this administration to play on these misconceptions again and it is shameful. They invoke human trafficking for the purpose of gaining support for their national security narrative and for increased border security.

They are not interested in protecting victims of human trafficking; in fact, their actions obscure the ability to find and protect actual victims of human trafficking by misleading law enforcement about what to look for and by making victims afraid to come forward and interact with government officials.

The Trafficking Victim Protection Act has been law for almost twenty years. In that time we have granted very few trafficking visas relative to the number of people the federal government says are trafficked into the U.S. each year, with applications decreasing as the risks of deportation increase. It appears that this this administration doesn't care all that much about either the so-called border crisis or human trafficking. It just uses the specter of both to invoke fear.

Dina Francesca Haynes is a professor of law at New England Law.