- The Washington Times - Wednesday, August 21, 2019

Border Patrol agents arrested 330,000 people in 2017 but only took DNA samples from fewer than 100 of them, breaking a federal law and allowing serious criminals to go free, a government watchdog reported Wednesday.

In one case, the suspect in an unsolved homicide was allowed to remain on the streets for years despite being picked up by Customs and Border Protection multiple times. Finally the person’s DNA was collected in 2016 and was connected to a 2008 Dallas killing, according to the U.S. Office of Special Counsel, which raised the alarm in a letter to President Trump.

The OSC said the lapse began during the Obama administration and has continued for nearly a decade at CBP, the agency that oversees the Border Patrol and Office of Field Operations, which mans the ports of entry.

“CBP’s noncompliance with the law has allowed criminal detainees to walk free,” said Special Counsel Henry J. Kerner. “Given the significant public safety and law enforcement implications at issue, I urge CBP to immediately reconsider its position and initiate DNA collection from criminal detainees.”

The law in question is the DNA Fingerprint Act of 2005, which requires federal law enforcement agencies to collect samples from those they arrest.



In 2010, then-Homeland Security Secretary Janet Napolitano asked for an exemption, citing lack of resources, and Attorney General Eric H. Holder agreed — though they said they would phase in DNA for criminal arrests within a year.

That hasn’t happened, the whistle-blowers said.

In a response last year, CBP told investigators that because they’re only responsible for catching people at the borders, they usually turn their arrestees over to U.S. Immigration and Customs Enforcement or the U.S. Marshals Service.

Both ICE and the Marshals require DNA collection, so nobody’s slipping through the cracks, CBP said.

“I have concluded that no corrective action is required in this case because there has been no violation of law, rule or regulation, and no substantial and specific danger to public safety,” Deputy CBP Commissioner Robert E. Perez wrote in a December letter to Mr. Kerner.

Mr. Perez also said Mr. Holder’s 2010 waiver remains in effect.

Mr. Kerner, the special counsel, said the whistle-blowers disputed CBP’s claims that other agencies pick up the slack, and he pointed to the Dallas homicide as evidence the system isn’t working.

In that case, the suspect had been arrested by CBP in 2013 and 2016, but no DNA was collected. It wasn’t until another 2016 arrest for jumping the border that CBP did take DNA, and the hit came back connecting the person to the 2008 killing.

The same situation played out a year later with CBP taking DNA from someone and connecting him to a 2009 homicide in Denver. It turns out CBP had arrested the subject in 2014, and ICE had arrested the person in 2009 — though DNA wasn’t taken either time.

“The FBI noted that had a DNA sample been collected during either of these interactions, this case would have likely been solved several years earlier,” Mr. Kerner wrote.

He said he gave CBP multiple chances to explain its reasoning or provide more evidence, and at times CBP suggested it would explain itself. But no explanation ever came.

Mr. Kerner said it can’t be a matter of resources, since CBP has grown in staff and budget since the 2005 law was enacted.

He said the Justice Department should also take a look at whether it can revoke the exemption Mr. Holder issued in 2010, and he asked Congress to get involved and ramp up pressure on CBP. He said that should involve “accountability” for CBP and Homeland Security officials who “have known for years that this situation existed, but chose not to act.”

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