End Child Trafficking Now Act (HR 3864 / S 2420, 116th Congress)

The Policy

Synopsis

The “End Child Trafficking Now Act” (HR 3864 / S 2420) aims to reduce the propensity of child trafficking across United States borders. The bill aims to do this by modifying Section 211 of the Immigration and Nationality Act to allow qualified members of the Department of Homeland Security to conduct DNA testing of aliens apprehended at any point along the United States border in order to ensure that a familial connection exists between them and any accompanying minors.

The test would not be immediately compulsory for apprehended individuals. DNA would only be taken in the event that the individuals are unable to provide either (a) documentation showing that the alien is a relative or guardian of the minor or (b) a witness able to testify to the familial connection between the alien and the minor.

In the event that neither (a) nor (b) can be satisfied and the alien refuses or fails the DNA test, that individual is marked inadmissible and the minor is taken into state custody and treated as an unaccompanied minor.

This legislation further addresses situations where children are “rented” or “recycled” by migrants in an attempt to present them as family members in order to get favorable treatment when crossing the border. Any person at least eighteen years old who is found to use an unrelated relative to gain entry into the United States would face criminal penalties.

Context

A major focus of the Trump administration’s platform has been reforming immigration policy in the United States. Within that context, apprehensions at the United States southern border and the use of asylum status have reached historic levels.

While many families have sought protections at the US border, some asylum seekers have arrived with children that they try and pass as their own, even though the individuals are not related. This phenomenon has likely occurred because of a twenty-day limit on minor detention; an adult that travels with a child to seek asylum status could have a significantly shorter detention period. Asylum claims can often take months, if not years, given the high volume of applications. This may create a temptation among some migrants to take advantage of policies that would mean they get released into the United States much sooner as they await their claims to be processed. There has been concern among Trump administration officials and border community leaders that as migrants become increasingly aware of this policy there is the potential for abuse.

At the same time, the collection of DNA for any purpose has long been a controversial topic in the United States. In 2005, Congress took the first steps towards widening the use of DNA testing in law enforcement. The DNA Fingerprint Act of 2005 required that any adult arrested for a federal crime have a DNA sample taken and collected. This law differs from HR 3864 because the parties being targeted for DNA sampling in the bill would be asylum seekers who have not been arrested for a federal crime.

In the case of Maryland v. King (2013), the United States Supreme Court found that taking a DNA sample (in this case a cheek swab) from arrested persons does not violate an individual’s Fourth Amendment right against unlawful search and seizure. Law enforcement has been able to use DNA testing in and in solving a number of cold cases. On the flipside, criminal justice advocates have been able to use new DNA evidence and testing methods to exonerate hundreds of previously convicted individuals.   

The expanding use of DNA testing continued with the Rapid DNA Act of 2017 (SciPol Brief available), which expanded the ability of law enforcement to use newer DNA identification technology and further authorized them to upload DNA profiles to the Federal Bureau of Investigation’s DNA index system.

In 2019, Immigration and Customs Enforcement agents undertook a DNA pilot program using rapid DNA tests on detained migrants who volunteered. Officials claimed that during the three-day operation, DNA testing revealed that 19% of family claims were fraudulent. While these results seem to provide some credibility to the concerns of the Trump administration, there is still widespread concern among some immigrant activists and non-profit groups for the general treatment of migrants. These groups, already concerned about the mistreatment of migrants, worry that this testing will negatively impact individuals who do not understand the ramifications of what they are being subject to.

The Science

Science Synopsis

Among humans, DNA is 99.9% identical. However, that 0.1% remaining is unique to each human being, consisting of genetic indicators that humans inherit from each parent along each part of their chromosomes. Familial genetic testing, a category of DNA testing, takes advantage of those inherited genetic indicators to determine if a relationship exists between tested individuals.

A standard genetic test is performed using human tissue, usually in the form of blood, bodily fluid (i.e., spit), hair, or skin. Typically, DNA testing in the context of immigration uses a buccal (cheek or mouth) swab. In familial genetic testing, the genetic indicators of each tissue sample are assigned a number and then the two samples are compared to see how many indicators they have in common. Generally, relatives will share many indicators; when a test is conducted, it is expected that family members will have more than 99.9% of their DNA be identical.

DNA testing is over 99.9% accurate and a typical private testing lab can give results in as little as two to five business days. Rapid DNA testing, which is a newer former of DNA identification, can provide results in as little as two hours. However, it is considerably more expensive to perform than traditional methods. 

Scientific Assumptions

  • DNA testing is able to consistently determine the familial relation of individuals being tested. (Section 2): DNA testing has been well researched and the general consensus is that it is nearly certain to be accurate each time in revealing a familial relationship.

The Debate

Endorsements & Opposition

  • Representative Lance Gooden (R-TX), press release, September 10, 2019: Senators Blackburn and Ernst are respected leaders in the fight against human trafficking. Their knowledge and insight will help us achieve our common goal of ending the exploitation of children on our southern border.”
  • Senator Marsha Blackburn (R-TN), press release, September 10, 2019: “It is horrifying that children are becoming victims of trafficking at our southern border. By confirming a familial connection between an alien and an accompanying minor, we can determine whether the child was brought across the border by an adult with nefarious intentions.”
  • Senator Joni Ernst (R-IA), press release, September 10, 2019: “During my visit to the southern border this summer, I heard directly from Customs and Border Patrol agents about children who are tragically being trafficked across the border by illegal immigrants who falsely claim they are related. These children are being used as a ‘passport’ to get across our border, and this needs to stop. One way to address this problem is by having DNA testing in place so we can ensure that an unaccompanied minor is actually connected with the person claiming to be their family, and not being used as an innocent pawn to skirt our immigration laws.”

Potential Impacts

While there is limited commentary on this specific bill, there has been frequent discussion of the DNA testing of migrants resulting from a recent proposal by the Trump administration to use the DNA Fingerprint Act of 2005 to begin collecting DNA from migrants detained at the border. Under such a genetic testing program, adults who are traveling with children that are not biologically “theirs,” such as stepparents, adoptive parents, or guardians, could potentially be separated from their accompanying minors if they are unable to provide alternative documentation proving a familial connection. 

At the same time, the policy has the potential to discourage the “recycling” of migrant children at border crossings, which can occur for a number of reasons, and ensure that children are not being exploited as a loophole in the US immigration system. In some circumstances, human traffickers are looking to smuggle the child across the border for a variety of purposes. For example, there have been a number of cases of sex trafficking involving children either apprehended at the border or rescued in the United States after being moved across the border into the United States. In others circumstances, immigrants claim a familial relationship with the child.

The Flores Settlement Agreement has stipulated that minors detained at the border can only be kept in custody for a maximum of twenty days. While a beneficial system for many migrant children, the agreement has been abused at times. For example, in 2018 federal authorities found over 3,100 migrants had used fake identification documents in order to make fraudulent claims about the ages of or familial relationships with accompanying children. However, that number is only about 0.5% of the 600,000 or so migrants apprehended at the border in the same year. Nonetheless, in August 2019, the Trump administration announced plans to end the Flores Agreement.