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Posted Saturday, January 10, 2009                                                                         

Immigrant advocates decry new rules on courts, DNA

By The Associated Press                   

SANTA ANA, Calif. (AP) -- Civil liberties and immigrant rights advocates expressed outrage over a Department of Justice rule that took effect Friday, mandating federal agencies to collect DNA samples from anyone who is arrested and foreigners detained by immigration authorities.

The rule aims to help federal law enforcement agencies solve and deter crimes by expanding the country's DNA database, which is overseen by the FBI. The government also hopes that sampling immigrant detainees will help law enforcement hold them accountable for any crimes they committed in the United States.

The rule, which was proposed last year using authority granted by Congress, sparked outcry from civil liberties advocates.

''We should not be taking DNA, which contains highly personal information, from people merely upon suspicion they've done something wrong,'' said Larry Frankel, state legislative counsel for the American Civil Liberties Union in Washington, D.C. ''This completely reverses the notion someone is innocent until proven guilty.''

Until now, the practice was limited to people convicted of felonies or certain violent misdemeanors.

Justice officials have estimated the DNA rule would put 1.2 million DNA samples into the federal DNA database each year.

Thirteen states already collect DNA samples from some people who had been arrested, according to a 2008 survey by the National Conference of State Legislatures. Nearly all limit the practice to arrests related to violent crimes or felonies.

At the federal level, officials will take a cheek swab for DNA from arrestees along with fingerprints regardless of the nature of the offense, according to the Department of Justice.

It was not immediately clear which federal agencies were implementing the rule. U.S. Customs and Border Protection has not begun doing so, said Lloyd Easterling, an agency spokesman.

Several civil and immigrant rights advocates questioned whether immigration enforcement agencies were prepared to carry out the sampling.

''I would be stunned if anybody in the immigration enforcement area was actually doing this,'' said Barry Steinhardt, director of the ACLU's technology and liberty program.

Other immigrants who are facing deportation because of shoddy work by their attorney lost the right to get their cases reopened in a decision dated Wednesday by Attorney General Michael Mukasey.

Charles Miller, a spokesman for the Department of Justice, could not say why Mukasey issued the 33-page ruling at this time. Immigration attorneys said the rule threatens immigrants' right to a fair hearing in a community already vulnerable to fraud.

''People pretend to be lawyers and hang up a shingle and tell the client, 'I am a lawyer and am going to represent you,' and then they don't,'' said Nadine Wettstein, director of the American Immigration Law Foundation's Legal Action Center. ''If that were to happen, this decision says, `Tough luck.'''

Nikhil Shah, a Los Angeles immigration attorney originally from India, said he almost lost his chance at a green card because he was misled by a paralegal who pretended to be an attorney and failed to properly submit his paperwork.

But Mark Krikorian, executive director of the Center for Immigration Studies, said immigrants need to take responsibility in choosing an attorney. '

'The broad concept is completely valid. Deportation cases are not criminal proceedings, therefore nobody has a right to any kind of attorney -- let alone a good one,'' said Krikorian, whose group favors limitations on immigration.

How many could be affected by the Mukasey ruling wasn't clear. Immigration courts do not track how many people seek to reopen cases because of inadequate representation, said Susan Eastwood, a spokeswoman. The immigration court system is separate from the criminal courts and are overseen by the Department of Justice.

''Our hope is a lot of these incredibly intrusive, borderline unconstitutional actions are simply going to be stopped by the new administration,'' said Charles Kuck, president of the American Immigration Lawyers Association.

Legislative records show that as a senator, President-elect Barack Obama supported laws that authorized the DNA collection.

------ Associated Press writer Devlin Barrett in Washington contributed to this report.
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