California Immigration Lawyer Blog

It is funny; I was recently at a Social Security Disability hearing at the office in San Rafael. Prior to my hearing, the judge asked if I had seen TRAC. Trac, the acronym, stands for, "Transactional Records Access Clearinghouse. TRAC produces a number of reports on various federal government agencies: immigration, FBI, IRS, terrorism and Social Security.. TRAC obtains their data by filing Freedom of Information (FOIA) requests and then compiling the data. I had not seen the website until today although according to their website, they have existed for a number of years. Although I will eventually look at the Social Security reports, I am more intrigued by the immigration reports because there are so many of them.

I decided to find out the statistics of asylum approval and denial rates with a judge I have a hearing with in a few weeks. It is amazing how easy the website is to navigate and how you can focus your search. I decided to search for asylum approval/denial rates with one judge in San Francisco. In order to search, I chose the city, San Francisco, the judge by the last name and then requested the latest report. I received very specific data pursuant to this request. I can tell how many cases this judge approved and denied. The report also tells me the ranking of this judge with other judges across the United States. Finally, the report tells me the nationalities of the people who were in this judge's courtroom.

While no two cases are alike, it is helpful to have these reports to better estimate your chances in Immigration Court.

A new rule, DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, goes into effect on January 9, 2009. It will expand DNA data collection to all people arrested for federal crimes and non-citizens who are detained. Currently the federal government collects DNA from persons convicted of felonies, violent crimes, aggravated sexual abuse, or serious military offenses.

In general, I believe DNA collection is a good thing. It helps to solve crimes and it is useful in research. I do not think though that the government needs to collect DNA from everyone and indeed we have not voted such a proposal in; yet it appears to be moving in that direction. On January 9, federal agencies can begin to collect DNA from non-U.S. citizens who are detained. This means that asylum seekers who are detained can be forced to give a DNA sample. Asylum seekers are not criminals. There is no legitimate reason to collect DNA from them. Likewise, anyone caught crossing the border illegally would have to give a DNA sample when they are "detained." Yes, illegally crossing the border is a crime but I am not sure why it is useful to have an illegal border crosser's DNA in the federal data base.

Just as alarming though is that a person's DNA can be collected at the time of an arrest of a non-violent offense, not at the time of conviction.

The government describes this law as just another means of data collection - like fingerprints, but this is not quite true; DNA reveals much more. A set of fingerprints can be used to identify a person and nothing more. A DNA sample contains not just identity but also a person's genetic make-up. It is not clear what the government would do with the knowledge of a person's genetic make up, but is alarming that they could do a search for all people with a "gene x." Do we want the government to have this kind of information?

The main criticism of the rule is that there is no provision for individuals to remove their DNA from federal criminal databases in cases where they have been wrongfully detained or may have even become citizens or proven their U.S. citizenship after being held in detention. Thus, the government could have a DNA sample from someone who has done nothing at all.

I believe that it is dangerous for the government to collect this kind of data which goes beyond the scope necessary for any criminal investigation. I hope the rule is challenged in court before it is implemented. Otherwise, I fear we are going down a path ripe for government abuse.