New ICE tactic raises questions about due process

In this 2014 photograph, Central American migrants crowd onto railroad tracks as a northbound freight train arrives at a station in Arriaga, in the Mexican state of Chiapas. Tens of thousands of unaccompanied children were apprehended crossing the U.S.-Mexico border that year. A majority were from Honduras, Guatemala and El Salvador and many said they were fleeing pervasive gang violence and crushing poverty. CREDIT: AP Photo/Rebecca Blackwell

When federal immigration officers showed up at the Long Island home of a boy from Honduras to arrest him in June, the bewildered 17-year-old asked the agents why they were taking him into custody. The reason, they told him, was because he had admitted to being in a gang, according to his attorneys.

While in custody, the  teenager repeatedly told the officers that he wasn’t in a gang or involved with a gang in any way, asserts his attorney. What’s more, the minor was already in the federal immigration system. After fleeing an abusive father in Honduras, the boy entered the United States as an unaccompanied child and as a result was eligible to apply for and is seeking Special Immigrant Juvenile status.

None of this mattered. The officers, according to a class action lawsuit filed in August against U.S. Immigration and Customs Enforcement (ICE) and other federal agencies, told the teenager that they had proof of his gang membership: a local police department report that claimed he had admitted to being in a gang.

Then, without notifying his immigration attorney or his mother, ICE began the process to deport the minor. They began by sending the young Honduran to a California juvenile detention facility 2,500 miles from his home.

Attorneys for the ACLU Foundation of Northern California, which filed a lawsuit on behalf of the 17-year-old in June and expanded it into a class-action lawsuit, say he is not alone. The minor’s arrest occurred in the midst of a major federal immigration crackdown on U.S. streets gangs, and the ACLU lawsuit cites the ICE detentions of two other Central American immigrant youths. Their attorneys say the arrests are part of a coordinated effort to detain immigrant minors and deny them immigration benefits based on weak and unsubstantiated allegations of gang affiliation.

They allege that these detentions are triggered by evidence gathered by local police, schools, and other law enforcement agencies that rely on flimsy “evidence” to make a gang allegation: Wearing a soccer jersey emblazoned with “El Salvador” on it and associating with other suspected gang members is enough “proof.”

“It’s a horrifying story,” said William S. Freeman, a senior ACLU staff attorney.

What [law enforcement is] saying is we have not charged and we’re not going to charge these young people with a criminal offense. We’re not going to try to make a case against them, but we have found a way to remove them from our streets and have them imprisoned,” said Freeman. “That’s fundamentally — that’s wrong. That’s a denial of due process.

This Feb. 7, 2017 photograph released by U.S. Immigration and Customs Enforcement (ICE) shows an arrest during an enforcement operation conducted by ICE aimed at immigration fugitives, re-entrants and at-large criminal immigrants in Los Angeles. CREDIT: Charles Reed/U.S. Immigration and Customs Enforcement via the Associated Press

Immigration authorities have targeted and deported criminally convicted gang members for decades. But since this spring, they are increasingly using gang allegations made by local law enforcement, school resource officers, border agents, and others to round up, detain, and place undocumented youth and adults in deportation proceedings, according to legal experts, immigration attorneys, and youth advocates across the country who say these gang-related deportations proceed even when evidence is weak, unsubstantiated, or even non-existent.

From the streets of New York to the immigration courts of Los Angeles, advocates say the gang label has become a scarlet letter in immigration proceedings, especially when mass immigration raids are sweeping up those merely suspected of being gang members as well as those who have not been convicted of any crimes. Immigrant advocates are compiling a national survey to determine how widespread the practice has become, but they said the gang allegations are surfacing in cases from coast to coast.

What we’ve seen from the Trump administration is that they’re using every tool at their disposal to try to target more and more immigrants, to allow fewer and fewer immigrants to come here, and to find more and more ways to deport people,” said Tulane University Law School Professor of Practice Laila Hlass. “And this is certainly part of that trend—going after people who don’t fit neatly into grounds of deportability, but trying to categorize them as gang members.”

Even under the Obama administration, some immigration attorneys around the country noticed that gang allegations lodged by the federal immigration authorities against undocumented youth in immigration removal proceedings began to increase.

But since the 2016 election, the practice has apparently grown, fueled by President Donald Trump’s inflammatory rhetoric characterizing gang members, and in particular members of the U.S.-Salvadoran MS-13 gang, as violent and out of control “animals.” His administration has aggressively implemented immigration policies that emphasize cooperation with local law enforcement.

President Donald Trump pumps his fists after speaking to law enforcement officials about the MS-13 gang during a July 2017 speech in Brentwood, New York. CREDIT: AP Photo/Evan Vucci

Nithya Nathan-Pineau, program director for the Detained Children’s Program at the Capital Area Immigrants’ Rights (CAIR) Coalition in Washington, D.C., said she began to notice a trend: Police reports would note that the minor was seen in the proximity of someone suspected to be a gang member, and thus the minor was suspected of being affiliated or gang involved, she said.  

“Those kind of allegations were increasing steadily, and now it’s almost uniform, particularly with these interior enforcement kids,” said Nathan-Pineau, referring to undocumented youth apprehended in the interior United States versus at the border. “Most of them are telling us when we meet them: ‘I’m here because they’re telling me that I’m a gang member, but I don’t know why they think that.’”

Nathan-Pineau said CAIR has also seen a shift in youth who are alleged to be gang members. Previously, the undocumented minors who were detained in the U.S. interior were those referred through the juvenile justice system and had been adjudicated delinquent, she said.

I’ve never seen this many kids who are there because of allegations, instead of an actual adjudication. So that’s a real shift,” said Nathan-Pineau, noting that the uptick began in May.

Nathan-Pineau describes the minors that CAIR works with as very similar to the undocumented youth cited in the ACLU class action lawsuit. The youth come from as far away as Washington, Utah, and Arizona. Last year she saw an increase in minors from Massachusetts and Georgia, and this year she’s seen more youth from New York. She believes the increase in all of those cases are connected to ICE operations that have focused on arresting gang members.    

“I would say there is small percentage of kids that we work with that do admit to being gang affiliated because they were forcibly recruited through violence or threats to their family, things like that. But that’s not the majority of who we are seeing,” said Nathan-Pineau.

In July, after Reuters reported on an ICE memo outlining the agency’s plans to target 16 and 17-year-old undocumented youth suspected of being gang members, Rep.  Tony Cárdenas (D-CA) fired off a letter to Thomas D. Homan, ICE’s acting director, as well as the secretary of the Department of Homeland Security. Calling the policy “far-reaching and deeply concerning,” Cárdenas called on ICE to cease the raids and asked to discuss the agency’s use of overly-broad criteria for “identifying gang involvement to initiate removal proceedings.”    

In an August response to Cárdenas, Homan wrote that the raids don’t “represent a change in the Department’s policy.” However, Homan also pointed out that DHS is no longer exempting classes or categories of immigrants from potential enforcement.

In this May 2017 photograph, U.S. Immigration and Customs Enforcement acting Director Thomas Homan, left, and Homeland Security Investigations deputy executive associate director Derek Benner, right, arrive to speak at a news conference in Washington to announce the results of a national operation targeting alleged gang members and associates. CREDIT: AP Photo/Susan Walsh

In an interview with ThinkProgress, Cárdenas said he wants gang members who commit crimes to be taken off the streets, but outlined why he sees ICE’s actions as an attack on the due process rights and freedom of individuals, and why he’s trying to lift the veil of secrecy surrounding ICE’s existing gang strategy.

“[W]e’re talking about affecting someone’s life based on an accusation and not based on fact, in some instances,” said Cárdenas.

To target suspected gang members, without evidentiary proof or due process is “egregious,” particularly because youth of color are predominantly targeted at the local level, said Cárdenas.   

“What I’m hoping that ICE could do or would do is discipline themselves to focus on identified gang members – properly identified – and go after those individuals rather than going after individuals because they’re suspected of being gang members,” said Cárdenas.

Yet instead moving cautiously, given the due process issues surrounding gang allegations, some politicians are pushing for laws that could prove to be counterproductive. In early September, Rep. Barbara Comstock (R-VA) called on Congress to expand the authority of federal immigration officials to deport gang members or those suspected of gang membership, even those who have not been convicted of a crime.   

Shortly after, the House of Representatives passed a bill introduced by Comstock that would amend the Immigration and Nationality Act to expand the definition of gang membership using criteria that critics say is even broader than existing state and federal definitions, and doesn’t provide due process provisions to allow individuals to challenge the gang allegations. The bill is now pending before the Senate judiciary committee.   

But civil rights and immigrant rights groups say Comstock’s bill won’t reduce the gang crime it aims to prevent and will have a chilling effect on fundamental freedoms of association.  

“These provisions impose guilt by association by targeting people not for their own individual culpable conduct, but for their mere association with ‘groups’ considered to be dangerous or otherwise disfavored,” wrote a coalition of national organizations in a statement released by the National Immigrant Justice Center in response to the bill. “These provisions also enable any low-level immigration agent without particularized training in criminal justice or gang sociology to make legal findings with no oversight or review of his decision.”

Some immigration attorneys say ICE agents are going so far as to falsely claim youth admitted gang membership to use this as evidence against them in deportation proceedings. This, said Los Angeles immigration attorney Erika Pinheiro is a common tactic she’s discovered where ICE agents have claimed on her clients’ removal orders that the minor admitted gang membership. A majority of her clients disputed ICE’s claims, telling her they have never made such an admission, said  Pinheiro, who is the director of policy and technology for Al Otro Lado, a Los Angeles-based nonprofit that provides legal services to deportees, refugees, and immigrants.  

“You’d have to fight tooth and nail against these designations,” said Pinheiro, who submits stacks of evidence showing her clients have been designated a gang member without due process.

In this 2014 photograph, Central American immigrant detainees sleep in a holding cell at a U.S. Customs and Border Protection processing facility in Brownsville,Texas. CREDIT: AP Photo/Eric Gay

And immigration attorney Rachel Prandini with the Immigrant Legal Resource Center (ILRC) in San Francisco, said there are due process concerns especially if this sort of informal information gathering is used against an individual in immigration court.

Obviously [a gang allegation] can have negative consequences for anyone, but if you’re talking about a noncitizen the consequences can be so much more extreme,” said Prandini.  

At the CAIR Coalition in Washington,D.C., which serves both local immigrant youth as well as minors detained by ICE from across the country, attorney Nathan-Pineau says one of the greatest challenges in defending against the gang allegations is the lack of time to prepare for cases.

Often their attorneys are not handed that [information] until they are in court and it’s being contested, and there is no additional time to talk to your client about it or look at it, and attack it, and tear apart how credible that evidence might be,” she said.

For undocumented immigrant youth seeking due process within the immigration court system, this escalation of the use of gang allegations is a cause for alarm, said Angie Junck, a supervising attorney for the ILRC, which created a practice advisory in April to provide legal advocates with the tools to respond to gang allegations in immigration court cases.

“The reality is —  and this is the name of the game with this administration clearly —  is that if you’re a person of a certain color living in a certain community you already are racially profiled, you already are labeled [as a gang member],” she observed.

Who is a gang member? Information is often kept secret.

The experiences of the ACLU’s 17-year-old Honduran client and two others in the lawsuit underscore the problems with how immigrant youth are being swept into the deportation pipeline without proper due process, said William Freeman. One of the primary concerns said Freeman, is the criteria used by police and immigration authorities to define a gang member.

The other concern involves what Freeman described as a lack of effort by agencies like the Office of Refugee Resettlement (ORR), which oversees the care and placement of unaccompanied immigrant minors who are apprehended by immigration authorities, to corroborate allegations made by ICE. The ORR is a named defendant in the lawsuit.  

Freeman said he and fellow attorneys have reviewed client files where ICE and the ORR take the word of law enforcement officers on gang allegations without interviewing police officers or checking a secondary source of information. In the case of the 17-year-old Honduran minor, the lawsuit outlines how ICE alleged that the teenager had two pending criminal cases, when in fact, he did not, said Freeman, noting that the charges had been effectively dismissed.  

If nobody at the federal level is really looking at this information objectively and critically, then you’re going to get people who are labeled as gang members arrested and imprisoned who shouldn’t be,” said Freeman.

At the state level, scrutiny of how this criteria is used, for example to place individuals on local and state level gang databases, has resulted in calls for more oversight and transparency. Legal experts have warned about the dangers of tapping flawed information that remains cloaked behind the secrecy of these databases, particularly when it places youth at risk for detention in the criminal justice system.   

Last year, a California State Auditor investigation found that the CalGang statewide database contained inaccurate and questionable information, including more than three dozen babies who had been listed as gang members.  

Databases such as CalGang have been shared with federal authorities for years, including U.S. Immigration and Customs Enforcement [ICE]. Even before Trump took office, legal advocates called on California lawmakers to place oversight of CalGang in the hands of the state department of justice, not law enforcement officers, to address the inaccuracies and ensure data verification.

At the federal level, however, efforts by immigrant advocates and attorneys to determine how ICE obtains information about alleged gang members have been thwarted by the secrecy that shrouds investigatory agencies.

An FBI employee, who declined to give her name, holds a board showing images of alleged MS-13 gang members during a news conference on May 17, 2017 in Los Angeles. Nearly two dozen alleged members and associates of MS-13 were arrested that morning as hundreds of federal and local law enforcement officers fanned out across Los Angeles serving arrest and search warrants. CREDIT: AP Photo/Jae C. Hong

Sean Garcia-Leys is an Urban Peace Institute staff attorney in Los Angeles who represents clients that have been accused of being active gang members. In 2016, Garcia-Leys co-authored a report examining the immigration consequences for undocumented youth alleged to be gang members.  

The report found that gang allegations have a high risk of error but are nevertheless stored in computer databases that are shared with other agencies such as ICE and the Federal Bureau of Investigation. The allegations can have serious consequences for undocumented immigrants, preventing individuals from gaining legal status even though they otherwise would qualify for relief.     

For Garcia-Leys, the primary question is: Where does this information originate?

“[Federal databases are] not without error, but that sort of intelligence gathering is much more accurate than your typical [local police] gang unit guy seeing two people on the corner and making a gut check decision about whether they’re gang members or not,” said Garcia-Leys.

If local gang databases are tapped by federal agencies, or federal databases are filled with information collected by local law enforcement agencies across the country, they are going to be “overwhelmingly filled with inaccurate data,” said Garcia-Leys. Concerned with how little is known about the opaque process that agencies such as ICE and the FBI use to tap these local databases, attorneys from the ACLU and the Urban Peace Institute, including Garcia-Leys, met with Congressman Cárdenas to seek answers to their questions about how the federal government tracks alleged gang members.

Cárdenas requested that the Congressional Research Service compile a memorandum on federal databases that contain gang information, and that report confirmed that both the FBI and ICE have taken the lead on investigating and collecting gang data, through, for example the FBI’s National Gang Intelligence Center. The report, reviewed by ThinkProgress, also found transparency issues. For example, the criteria that must be met for a person to be included in or removed from the NCIC gang file is not publicly outlined by the FBI.

For Garcia-Leys the questions as to whether the information in these databases is accurate remain unanswered, and because this information is exempted from Freedom of Information Act disclosure due to its investigatory nature, it will likely remain so unless Congress decides to investigate, said Garcia-Leys.       

Right now, the interest of law enforcement in keeping this information secret is just going completely unchallenged and unchecked,” said Garcia-Leys. “And I think there needs to be some pressure put on them to give out some information so that advocates can ensure that inaccurate information is not being used against people.”