By Maya Rhodan
July 5, 2018

Thousands of children who were separated from their parents at the U.S. border remain in federal custody, Health and Human Services Secretary Alex Azar said Thursday, one week after a federal court ordered the Trump Administration to quickly reunite the separated families. Now, in order to reunify families, HHS is conducting DNA tests to verify family relationships.

Azar told reporters on a conference call on Thursday that “fewer than” 3,000 kids – including around 100 who are under age 5 – are being cared for facilities funded by the Office of Refugee Resettlement, which is run out of HHS. There are more than 11,800 minors in their care – most of whom arrived at the border unaccompanied.

The Trump Administration is currently facing a tight deadline to reunite the families who were separated under their “zero tolerance” policy at the border. Last week, a federal judge ordered the Administration to return minors to their parents within 30 days. For children under 5, the timeline is even shorter – the deadline is Tuesday.

On Thursday, Azar said that in order to comply with that order the government is now conducting DNA tests to “confirm parentage quickly and accurately.” CNN first reported that the administration was conducting DNA tests on families in custody, which raised concerns among advocates and lawyers working with migrant families who have been separated.

As TIME reported on Monday, a person seeking to take custody of an unaccompanied minor in ORR care typically has to submit an application, pass a background check, provide documents to prove their identity, and provide proof of residence and financial viability. But Azar told reporters on Thursday that, in a number of ways, the department has had to “adapt” existing processes in order to meet “new demands and circumstances.” The tests are primarily being conducted via cheek swabs, officials said.

“Because of the compressed timeframe, the typical process of using documentations is not going to be completed within the timeframe allowed in this case by the court decision for the great majority of these children,” Commander Jonathan White, the Assistant Secretary for Preparedness and Response at HHS, told reporters on Thursday. “For this reason, the decision has been made to use the faster process of DNA verification to confirm that biological relationship.”

The use of DNA tests has stoked fury among advocates, who have expressed concern that the administration could use the data they collect from the DNA tests to track migrant families.

Jennifer Falcon, the communications director for the Refugee and Immigrant Center for Education and Legal Services, or RAICES, called it the “grossest violation of human rights” and said the children in ORR custody are too young to consent this kind of collection of their personal data.

“It’s deplorable they are using the guise of reuniting children to collect even more sensitive data about very young children,” Falcon said. “This would allow the government to conduct surveillance on these children for the rest of their lives.”

On the call with reporters, HHS’ White pushed back on the idea that the government was arbitrarily collecting data and said the DNA tests were being conducted solely for the purpose of affirming the relationships parent-child relationships that are being asserted by individuals in custody.

Sophia Gregg, an attorney with the Legal Aid Justice Center, says that beyond it being “extremely intrusive” to take people’s DNA, to her, the need for this kind of data collection suggests that the Administration was not prepared to reunite families after they’d been separated.

“It’s very concerning from an advocate’s perspective that there needs to be DNA testing because of a problem that they created themselves,” Gregg said. “The fact that the U.S. government lost track of which child goes with which parent shows you the lack of competence that they have about this issue.”

If and when children are released to adults who are currently in the custody of the Department of Homeland Security, it is not yet clear what will happen to them. The Trump Administration is currently seeking the legal authority to detain kids with their parents indefinitely. Under an existing legal settlement, children cannot be held in custody for longer than 20 days.

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