The Left has been all over President Donald J. Trump, ever since he rode down that escalator and made those comments about “Mexico sending rapists and murderers.” Guess what? Turns out, like he has been about many things that make liberals heads spin – he was right. Some “very bad people” are getting into the country, because for years prior to the Trump presidency, the border patrol has not been following the law in obtaining DNA samples.
In a troubling report from a top government watchdog group, the White House was alerted this week that Customs and Border Protection (CBP), through a “disturbing” pattern of misconduct, has endangered the public for nearly a decade by failing to comply with a federal law requiring that the agency collect DNA samples from detained migrants.
In a scathing letter to President Trump, exclusively obtained by Fox News, the U.S. Office of Special Counsel (OSC) said CBP’s “noncompliance with the law has allowed subjects subsequently accused of violent crimes, including homicide and sexual assault, to elude detection even when detained multiple times by CBP or Immigration and Customs Enforcement (ICE).”
The OSC told the White House that it was taking the “strongest possible step” to “rebuke the agency’s failure to comply with the law,” as well as its “unreasonable” attempts to defend its own conduct.
Under the law, CBP was required to collect DNA from individuals in its custody, to be run against FBI violent-crimes databases. The procedure is separate from DNA collection designed to establish familial relationships among migrants at the border.
One case noted in the letter described by the OSC as “troubling,” involved a suspect in a 2009 Denver homicide who had “several interactions” with law enforcement, including two arrests, but was allowed to go free until investigators finally collected a DNA sample in 2017.
Many Similar Unnerving Cases Listed
The Denver case was only one of many such cases that should leave Americans with cause for concern. In another instance, a suspect in “two particularly brutal” sexual assaults that occurred in 1997 eluded detection despite being in federal custody on nine separate occasions — before finally being connected to the crime in March 2019, after a DNA sample was collected.
CBP’s behavior constituted an “unacceptable dereliction of the agency’s law enforcement mandate,” Special Counsel Henry J. Kerner wrote. Additionally, Kerner said that CBP’s internal review of its own conduct, which cleared the agency of any unlawful activity, was “disingenuous.”
“It is disturbing that this would occur even once, let alone routinely, for approximately a decade,” he added. “Many cold cases might have been solved — and victims of violent crimes granted closure — by now if CBP had complied with its obligations under the law.”
Beyond the letter to the White House, Special Counsel Kerner also urged Congress to engage in “robust” oversight, and for authorities to follow the law and collect the DNA samples.
“CBP’s noncompliance with the law has allowed criminal detainees to walk free. 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,” Kerner said in a statement.
Kerner also praised the CBP whistleblowers who had the courage to bring the matter to the OSC’s attention by filing a complaint in May 2018.
The whistleblowers specifically had alleged that the DNA pilot program was put on hold during the Obama administration, and efforts to implement it under the Trump administration were derailed.
“There is no current pilot program. It’s basically dead in the water,” whistleblower Fred Wynn said.
Speaking only to Fox News, another whistleblower, Mark Jones, suggested federal authorities were concerned about facing legal liability from “angel families,” or those who have lost loved ones at the hands of illegal immigrants — and that, by admitting fault, CBP potentially would expose the agency to lawsuits.
“We have a great tool that was mandated by and approved by Congress as a law and we’re not using it,” Jones added. “We are allowing ourselves to apprehend individuals and process them and by not taking the DNA sample, we’re not giving our law enforcement — both state and federal — the additional tool to solve these outstanding crimes.”
CBP Responds to Whistleblowers Allegations
In December 2018, CBP responded to the whistleblowers’ complaints in a letter to the OSC, saying that an internal review by CBP’s Office of Professional Responsibility found that “there has been no violation of law, rule, or regulation, and no substantial and specific danger to public safety.”
CBP offered two primary defenses for its conduct. First, in 2010, Barak Obama’s Homeland Security Secretary Janet Napolitano got a waiver for the DNA requirements from then-Attorney General Eric Holder, citing “severe organizational, resource and financial challenges.” CBP said that waiver was still in effect, citing operational challenges.
Secondly, CBP asserted that other law enforcement agencies had picked up the slack and collected the DNA samples.
“CBP policy requires that detainees be promptly processed and turned over to appropriate law enforcement agencies such as Immigration and Customs Enforcement (ICE) and U.S. Marshals Service (USMS). Both ICE and USMS have policies requiring DNA collection of detainees and arrestees,” Robert Perez, the deputy CBP commissioner, wrote to the OSC.
But, writing to Trump, Special Counsel Kerner said CBP’s arguments were legally and factually “unreasonable.”
Kerner told Trump that CBP’s claims that it lacked necessary resources were “disingenuous,” given increases in its budget over the years and the FBI’s state-of-the-art DNA matching technology.