deport by any means nec 20180521

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1 DEPORTATION BY ANY MEANS NECESSARY: How Immigration Officials are Labeling Immigrant Youth as Gang Members Findings of a National Survey Regarding Gang Allegations in Immigration Proceedings

2 The Immigrant Legal Resource Center (ILRC) is a national nonprofit that works with immigrants, community organizations, legal professionals, and policymakers to build a democratic society that values diversity and the rights of all people. Through community education programs, legal training & technical assistance, and policy development & advocacy, the ILRC’s mission is to protect and defend the fundamental rights of immigrant families and communities. www.ilrc.org Laila L. Hlass, Professor of Practice, Tulane University School of Law and Rachel Prandini, Staff Attorney, Immigrant Legal Resource Center The authors wish to thank Margaret W. McLaughlin for her helpful research support, analysis, and insights throughout the drafting of this report. Copyright: © 2018 Immigrant Legal Resource Center. All rights reserved.

3 TABLE OF CONTENTS Introduction 2 The School-to-Deportation Pipeline: David’s Story 3 How Is the Government Using Gang Allegations to Target 4 Youth in Immigration Enforcement Actions? Findings of a National Survey on Accusations of Gang 6 Involvement and Outcomes for Youth 15 From Facebook to Deportation: Oscar’s Story 16 Conclusion and Recommendations 18 Appendix A: Questions From Immigration Judges and USCIS Adjudicators about Gang Affiliation reported by Survey Respondents Appendix B: 19 Sample HSI Report with Social Media Pictures Appendix C: 25 Select resources regarding the unreliability of gang databases, fusion centers and gang allegations

4 INTRODUCTION In the fall of 2017, amidst increased anti- immigrant rhetoric from the Trump administration, the authors observed a rising trend of immigration officials targeting young immigrants based on alleged gang involvement. With data lacking on this trend, the authors embarked on a national survey of immigration attorneys to quantify the perceived rise in gang allegations against immigrants. What they found was a three-pronged problem: First, immigration officials across various sub-agencies of the Department of Homeland Security are falsely accusing immigrant youth of gang involvement, leading to their detention, deportation, and/or denial of immigration benefits. Second, young immigrants with prior gang involvement are in some cases being denied immigration benefits they are otherwise eligible for at the discretion of immigration officials, even when they provide evidence of rehabilitation and community involvement. Lastly, immigration law provides no clear definition of what does and does not constitute gang involvement nor are there rules of evidence present in immigration proceedings, opening the door for immigration officials to offer flimsy or false evidence of gang involvement and to take a wide and largely uncontestable Annotations made by undisclosed interpretation of the term at will. immigration officials. As a result, young Latinx youth are being racially profiled by immigration officials under the pretense of gang involvement, denied second chances even if they have turned their lives around from past gang affiliation, and as a whole, being refused their right to a fair day in court. This report details those findings with the goal of informing immigration attorneys across the country as they defend their clients against the often-baseless nature of these allegations. In addition, the report shares emerging best practices to fight against unfounded gang allegations, as well as to mitigate the impact of prior gang involvement. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 2

5 The School-to-Deportation Pipeline: David’s Story David’s attorneys later obtained them through records David, a high schooler with a mental disability, lived requests. The police report used, in part, to build the with his father when the Department of Homeland Security’s Immigration and Customs Enforcement government’s case that David is involved in gang activities, made no mention of gang membership, but (ICE) agents arrested him as a “verified gang member.” only mentioned David as someone who was previously Abandoned as a toddler by his mother and targeted by violence in his home country, David had dreams of the misidentified in an investigation and completely cleared of blame. A school safety officer described United States of America—of reuniting with family and feeling safe. Instead, David began living a nightmare, David as a gang associate in the school incident report, spending a year and a half in immigration jail. which David had never been shown, nor disciplined for. The safety officer explained the basis of the gang association label as David standing next to another As “evidence” of his alleged gang membership, student at school believed to be in a gang, and because ICE produced Facebook pictures and a boilerplate one high school student reported they had heard from Homeland Security Investigations (HSI) report that briefly mentioned the existence of a police report a third high school student David was involved with and a school incident report with “details” of gang a gang. With this information, the immigration judge eventually found that David was gang-involved, denied membership. In the Facebook pictures, David wore a Chicago Bulls cap his cousin gave him, a pair of Nike his lawful permanent resident application as well as an application for asylum, and ordered him deported to a shoes, and some blue clothes, including a mandatory 1 school uniform t-shirt. The social media pictures had country where he feared for his life. handwritten scribbles from an unidentified source with comments such as “MS-13 Gang apparel ‘Bulls’ hat.” David’s story is not unique. In the past two years, reports of immigration officials making gang allegation This information was enough for David to be placed in — based on flimsy or no evidence—appears to be on the deportation proceedings in immigration court, where an immigration judge denied David’s request to set a rise. Based on these accounts, the authors conducted bond that would have allowed him to be released from a first-of-its-kind survey of immigration attorneys to learn more about their experiences and perceptions of custody. The judge did not allow him to testify, and decided David was a danger to the community. this emerging trend. Although the underlying police report and school incident report were not provided at the bond hearing, 1 E-mail from Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ., to Laila L. Hlass (Feb. 9, 2018) (on file with author). Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 3

6 How Is the Government Using Gang Allegations to Target Youth in Immigration Enforcement Actions? President Trump has increasingly targeted young immigrants by attempting to publicly link gang violence to the “surge” of unaccompanied minors who “Gang allegations are an easy way have entered the United States. Attorney General to target these kids—just slap on a Jeff Sessions claimed, “[w]e are now working with the Department of Homeland Security and HHS gang allegation, and they’re likely [Department of Health and Human Services] to deportable. There’s little you can do examine the unaccompanied minors issue and the exploitation of that program by gang members who because judges won’t hear it.” 2 come to this country as wolves in sheep clothing.” Alexandra Peredo Carroll, Esq., Pro Bono Coordinating Attorney. Attorneys have decried the use of gang allegations in Kids in Need of Defense (KIND) 3 immigration proceedings as the New Red Scare, where flimsy evidence can result in automatic deportation. Neither gang membership nor gang association are This report details findings from a national survey defined in the immigration statute, and definitions of and qualitative interviews of immigration attorneys a “gang” differ among law enforcement agencies and who have represented individuals accused of gang 5 other state and federal agencies. affiliation in immigration proceedings, concluding that gang allegations against immigrants are on the rise Gang allegations matter because immigrants with 4 across the country, are predominantly against Latinx alleged gang involvement are the focus of enforcement youth, and that evidence, if presented, is often suspect, actions by the Department of Homeland Security involving reliance on a single individual’s accusation, 6 Gang allegations can impact immigration (DHS). and/or social media pictures depicting youth status in a variety of ways. In addition to gang-related wearing popular brands and sports paraphernalia. convictions making immigrants ineligible for various forms of relief from deportation, gang allegations may 2 Jeff Sessions, U.S. Attorney Gen., Remarks to Federal Law Enforcement in Boston About Transnational Criminal Organizations (Sept. 21, 2017) (transcript available at https://www.justice.gov/opa/speech/attorney-general-sessions-gives-remarks-federal-law-enforcement-boston-about). 3 Telephone Interview with Adina Applebaum, Senior Attorney, Immigration Impact Lab, Capital Area Immigrants’ Rights (CAIR) Coal. (Nov. 30, 2017) (“It’s like the communist scare.”). L Ord xf O , Latinx 4 Latinx refers to a person of Latin American origin or descent (used as a gender-neutral or non-binary alternative to Latino or Latina). iving , https://en.oxforddictionaries.com/definition/latinx (last visited Mar. 11, 2018). d ictiOnaries 5 Immigrant Legal Res. Ctr, Practice Advisory: Understanding Allegations of Gang Membership/Affiliation in Immigration Cases 1, 3 (April 2017), https://www. (forthcoming 2018), draft . ev . U. L. r t a ilrc.org/sites/default/files/resources/ilrc_gang_advisory-20170426.pdf; Laila Hlass, g , The School to Deportation Pipeline . s available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3132754 (manuscript at 6). 6 Hlass at 3; Jeff Sessions, U.S. Attorney Gen., Remarks Announcing the Department of Justice’s Renewed Commitment to Criminal Immigration Enforcement (Apr. 11, 2017) (transcript available at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-announcing-department-justice-s- renewed). Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 4

7 Sources for information underlying gang allegations also increase chances of immigrants being detained 7 during the pendency of their immigration cases, include ICE investigations, interviews in the field or which has devastating consequences for the likelihood in detention, arrest or conviction records, probation 8 of fighting deportation. reports, information gathered by public school officials, Additionally, most pathways 12 to lawful permanent residence are discretionary, so a and information provided in immigration applications. mere allegation can be sufficient for an adjudicator One common source of such information is “gang 9 to negatively exercise their discretion. In practice, databases,” or shared indexes that track alleged gang affiliation. These databases include personal details even the “mere perception of criminality” can impact immigration status because so many decisions turn on such as addresses, identifying physical characteristics, 10 credibility determinations. photographs, nationality and alleged affiliation to 13 The or role in a gang, among other information. information is then shared across state governments, federal government agencies and some areas of 14 Canada. Commonly used databases include the 15 the FBI’s National Crime privately owned GangNET, “Gang allegations make it 16 and local and state versions such Information Center, 17 easier for the government to as California’s CalGang and Chicago’s CLEAR Data 18 Warehouse. criminalize and deport people” Sarah Gavigan, Staff Attorney, CARECEN-SF Gang databases have come under criticism as they are 19 notoriously unreliable. In particular, gang databases have been criticized for having vague criteria for designation of individuals as gang-involved, lack of oversight and review, as well as lack of transparency or Gang allegations can arise in a myriad of settings notice, so that inaccurate data practicably cannot be in immigration cases, including during removal 20 challenged. For example, a 2016 audit of the CalGang proceedings when deciding whether to grant database found numerous inaccuracies and issues, immigration relief, when adjudicating affirmative including 42 entries of individuals who were supposedly immigration applications for protections like asylum and 21 under the age of one at the time of entry into CalGang. other pathways to lawful permanent residence, during Following the auditor’s report, the California legislature immigration raids to prioritize who will be arrested passed a law requiring a moratorium on the use of and detained, or while in immigration detention when CalGang until the Attorney General certifies that a making decisions about release or security level of the 22 11 purge of unsupported data has been completed. detention setting. 7 Practice Advisory at 9. . L. r ev a . 1 (2015). 8 See generally Ingrid V. Eagley & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. P . They are also a factor in applications for the Deferred Action for Childhood Arrivals (DACA) program, though the Trump administration announced in 9 Id September 2017 they were rescinding this program. 10 Hlass at 5. at 3-4, 8-9. Practice Advisory 11 Id. 12 at 3, 5-6. Id. 13 at 4. See id. 14 at 4-6 for a more thorough exploration of the role and operation of gang databases. 15 , CSRA, https://www.csra.com/gangnet (last visited Jan. 2, 2018). About GangNET 16 National Crime Information Center (NCIC), FBI, https://www.fbi.gov/services/cjis/ncic (last visited Jan. 2, 2018). c tate s , CalGang 17 Of , https://oag.ca.gov/calgang (last visited Jan. 2, 2018). The CalGang database has been temporarily disabled as of Ustice J Of . ePt . d aL January 1, 2018. The website indicates that database access will be restored but provides no timeframe for when this is to occur. Online Services: CLEAR https://portal.chicagopolice.org/portal/page/portal/ClearPath/Online%20Services/ICLEAR (last visited Jan. 2, 2018). , OLice . P hi c , 18 tan . J. c.r. & c.L . 115 (2005). 19 See, e.g. , Joshua D. Wright, The Constitutional Failure of Gang Databases , 2 s 20 Hlass at 35. he https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf (2016) ysteM s nteLLigence i riMinaL c gang aL c . O , n Or Udit a tate . s aL , c OweLL M. h Laine e 21 . 2015-130, t 22 . Cal. Assemb. Bill No. 90 (2016-2017 Reg. Sess.), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB90 See Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 5

8 Findings of a National Survey on Accusations of Gang Involvement and Outcomes for Youth With news of the Trump administration’s targeting Where and against whom are gang of young immigrants in mind, the authors embarked allegations being made? upon a study to learn more about this emerging trend. Through word of mouth, news stories, social media, and attorneys’ networks, the authors observed growing Gang allegations are appearing in immigration numbers of reports of gang allegations being used proceedings from coast to coast. Attorneys from 21 as a means to detain and deport immigrant youth. states and the District of Columbia completed the While it appeared that regionally some attorneys were survey. Seventy-nine percent of respondents had beginning to identify common tactics, there was not handled at least one case that involved allegations of yet scrutiny at a national level of this new phenomenon. gang involvement. Fifteen percent had handled ten or more cases with allegations of gang involvement. Therefore, the authors conducted a national online Respondents reported that in 40 cases, their immigrant survey of immigration attorneys asking about their clients were accused of being gang members; in 25 perceptions and experiences regarding the use of gang cases, they were accused of being gang associates or allegations in immigration proceedings against both affiliates; and in 17 cases, they were accused of being children and adults; they also conducted 11 qualitative both a gang member and an associate. In seven other interviews of immigration attorneys to elicit more details cases, the clients were not directly alleged to be gang of cases involving gang allegations, against children and members or associates, but were probed on issues such 23 The survey was open between August 9, 2017 adults. as whether they had prior affiliation with a cartel, or and December 15, 2017 and was distributed through a whether they had any acquaintances or family members number of national and regional immigration attorney that were gang members. 24 Seventy-three individuals, who practice networks. primarily or secondarily in 21 states and the District Gang allegations are increasing, according to survey of Columbia, completed the survey. The states with respondents: 50% of respondents felt that allegations the highest numbers of responses included California of gang involvement were increasing; 18% responded (23%), Massachusetts (11%), Virginia (12%), New York that they felt they have generally remained the (12%), Maryland (5%), and New Jersey (4%). Most same; and no respondents perceived that allegations 25 responses were from pro bono attorneys (62%), with In certain of gang involvement were decreasing. 14% of survey responses from attorneys who charge a states (Massachusetts and New York), an even higher regular fee. Twenty-one percent of survey respondents percentage of respondents felt that gang allegations provide a mix of pro bono and payment plans, and 4% were on the rise, with 63% of respondents from charge a reduced fee. Massachusetts and 66% of respondents from New 23 Interviews were conducted with Adina Applebaum, Senior Attorney, Immigration Impact Lab, Capital Area Immigrants’ Rights (CAIR) Coalition; Elizabeth Badger, Senior Attorney, Kids in Need of Defense (KIND); Shanti Brown, Staff Attorney, KIND ; Alexandra Peredo Carroll, Pro Bono Coordinating Attorney, KIND; Yasmine Chahkar Farhang, Staff Attorney, Make The Road New York; Julio Henríquez, Law Offices of Julio Henríquez; Sarah Sherman Stokes, Associate Director, Immigrants’ Rights and Human Trafficking Clinic, Boston University Law School; Desireé C. Hernández, Deputy Executive Director & Lenni Benson, Professor of Law and Director Safe Passage Project Clinic, Safe Passage Project; Hena Mansori, Supervising Attorney, National Immigrant Justice Center; Nanya Thompson, Esq., Nanya Thompson Law, Inc.; Sarah Gavigan, Staff Attorney, CARECEN-SF. Attorney networks, or listservs, where the survey was posted include Childimmigration (a national listserv for lawyers serving immigrant youth); 24 VAWAUpdates (a national listserv of legal advocates serving survivors of domestic violence, sexual assault and human trafficking); iclinic (a national listserv of immigration clinical law teachers); crimimm (a national listserv of immigration advocates focused on the intersection of criminal and immigration law); gang- imm (a national listserv of immigration advocates focused on gang related immigration issues); nationalimmigrationproject (the listserv for the National Lawyers Guild’s National Immigration Project); CAIR coalition listserv (a DC/Virginia/Maryland based listserv administered by the CAIR coalition); AILA MidSouth (a listserv of the American Immigration Lawyers Association for the MidSouth including Mississippi, Louisiana, Tennessee, and Arkansas); Masslawlist’s Immigration listserv (a Massachusetts immigration advocate listserv), Child-immigrant-nonprofits-collaborative (a DC/Virginia/Maryland based listserv of lawyers serving immigrant youth); SIJS-NY (a New York City based listserv of immigration lawyers serving immigrant youth); SIJSTaskforce (a California Bay Area listserv of immigration lawyers serving immigrant youth); SIJS (a Los Angeles are listerv of immigration lawyers serving immigrant youth); SFILDC (a San Francisco area listserv of immigration lawyers representing people in removal proceedings); and SIJS (a national listserv of legal advocates representing immigrant youth in seeking Special Immigrant Juvenile Status). 25 Thirty-two percent of respondents were unsure. Note that not every survey respondent responded to every question, so percentages are calculated based on how many answered that particular question. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 6

9 York indicating that they had observed an increase in How are gang allegations impacting allegations of gang involvement in immigration courts. individual immigration cases? In more in-depth telephone interviews the authors conducted with 11 attorneys following the survey, a majority of the interviewees (73%) noticed the increase Attorneys reported that their noncitizen clients faced 26 in gang allegations in the last one to two years. questions regarding gang involvement in cases both before US Citizenship and Immigration Services Young people are those most impacted, according (USCIS), where individuals file affirmative applications to survey respondents. Half of survey respondents for immigration benefits, and in immigration court, revealed that their cases were ones in which the where they are defending against deportation, in impacted individual was between the age of 18 and nearly equal degree. Fifty-seven percent of survey 20. The next most common age range was 15 to 17 respondents reported experiencing USCIS adjudicators years old, followed by 21 to 25 years old. This is not asking clients about gang affiliation in an interview, and surprising since most gang membership —alleged or 53% of survey respondents reported ICE prosecutors or 27 real—is perceived to occur in adolescence. Further, the an immigration judge questioning their client regarding current administration has publicly tied gang violence gang membership in immigration court. in the United States to recently arrived unaccompanied immigrant children, which may be fueling the There are also patterns regarding the types of Department of Homeland Security’s allegations of cases and legal issues raised. Most commonly, gang 28 gang involvement in immigration cases of youth. allegations have arisen in the adjudication of bond— Information gathered through phone interviews was where individuals seek to be released from immigration —most interviewees said that the consistent with this detention pending the outcome of their court most common age range in which they had seen DHS proceedings (62% of respondents reported at least one allege gang membership or association was mid-teens bond case), adjustment of status (47% of respondents to early 20s. had an adjustment case before USCIS and/or EOIR), asylum or related protection (41% of respondents had While the survey did not collect information regarding a case before the asylum office, 43% of respondents ethnicity of noncitizens subject to gang allegations, this had at least one asylum/withholding or Convention question was asked during the 11 in-depth interviews Against Torture [CAT] case before the Immigration 29 conducted following the survey. All 11 attorneys Court), and Special Immigrant Juvenile Status (19%). reported that in all of their cases involving allegations Attorneys have also reported the increased use of gang of gang involvement, the clients were Latinx, mostly allegations in adjudications involving cases of immigrant Central American. youth seeking protection through Deferred Action for Childhood Arrivals (DACA); survivors of domestic violence, serious crimes, and human trafficking seeking protection from deportation; legal permanent residents 30 seeking citizenship; and even in competency hearings. “You hang out in a soccer field, are Lastly, attorneys also noted gang allegations may arise Latino, and get in a local gang after or during an arrest, as well as while the noncitizen 31 database that then gets in the is in the custody of the Office of Refugee Resettlement. hands of immigration, and there’s Gang allegations against an immigrant may give rise to nothing you can do about it.” a number of different consequences under immigration law, depending on the procedural posture of the case. Shanti L. Martin Brown, Esq., Immigration Staff Attorney, Ayuda For bond cases, the legal issue raised when an individual is alleged to be gang-involved is whether he is a danger 26 The attorneys who noted this recent trend had been practicing immigration law for an average of 6.5 years. One other attorney noticed the increase in 2014, and two attorneys responded that they were unsure. at tr c ang g L , https://www.nationalgangcenter. n , Frequently Asked Questions: What proportion of adolescents join gangs and how long do they stay in? 27 ’ . gov/About/FAQ#q10 (last visited Feb. 15, 2018). P OLitic O (Sept. 21, 2017, 6:19 PM), https://www.politico. 28 See, e.g. , Lauren Dezenski, Sessions: Many unaccompanied minors are ‘wolves in sheep’s clothing, ’ com/story/2017/09/21/jeff-sessions-border-unaccompanied-minors-wolves-242991. 29 Survey respondents mentioned gang allegations arising at the I-360 and adjustment of status phases for Special Immigrant Juveniles. There were no responses from the survey, but one interviewee noted this issue. Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ 30 Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 18, 2017). 31 The Office of Refugee Resettlement is part of the Department of Health and Human Services, and has responsibility for the custody of unaccompanied immigrant children by statute. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 7

10 32 to the community. For adjustment of status, asylum, What “evidence” is being used to and deferred action, the legal issue is often discretion, support gang allegations? and therefore if the judge or USCIS officer finds gang affiliation, the question is whether the negative factor 33 One of that association outweighs positive factors. The attorneys interviewed were troubled by the interviewee reported gang allegations being linked to evidence used to support gang allegations, as it 34 which the legal issue of the noncitizen’s credibility, often lacked transparency and reliability. Evidence, in 35 In is particularly relevant in asylum adjudications. some cases, consisted simply of investigatory notes, another interview, one advocate noted that gang meaning a single school, police or immigration official’s 36 affiliation arose in a Special Immigrant Juvenile case, speculation may decide the immigrant youth’s future; where the USCIS office found that the underlying family the author of the investigatory note is rarely made court order that stated that the youth’s best interests available for examination, and therefore the basis for would not be served by being returned to the home the allegation may remain unknown. As one attorney country was invalid. USCIS purported the state court’s stated, the trend of using allegations is “an absolute finding was uninformed as the noncitizen is a member violation of due process. ICE uses unsubstantiated of a gang and had the state court known about the evidence. The biggest problem is the burden of proof alleged gang membership, the court would not have 38 falls on someone to prove a negative.” 37 made their finding. Attorneys reported a variety of evidence being used to support gang allegations, as well as a number of common questions that were directed at the noncitizens in interviews and hearings relating to gang membership. The most common questions were around supporting or helping gang members (21), followed by whether the noncitizen knows gang members (17), whether the “ICE is using gang allegations noncitizen him or herself is a gang member or former to try to keep people in custody gang member (15), or whether the noncitizen has a tattoo (15). Other questions include: questions about so they can’t bond out; then... specific or daily activities related to gang membership they’re stuck in detention and (11), questions about knowledge of hand signs, clothing that ends up being the end of and symbols purportedly related to gangs (10), questions about gang affiliation of a family member the line for them.” (six), questions relating to social media (seven), and Hena Mansori, Supervising Attorney, questions about whether the client has been involved National Immigrant Justice Center in criminal activity (five). Questions run the gamut from asking about specific information relating to the noncitizen to incredibly broad questions, such as “what do you know about gangs?” Please see Appendix A for a list of reported questions by topic area. 32 , 26 I. & N. Dec. 791 (B.I.A. 2016). Matter of Fatahi See and P 7 ., ervs s MMigratiOn i itizenshiP U.s. c 33 (Aug. 23, 2017), https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartA-Chapter9. aL anU M OLicy html. Benefits that are discretionary include asylum, adjustment of status, and naturalization, and depending on the procedural posture, the adjudication may be Of i MMigratiOn L aw 113 (2016). done by USCIS, or an immigration judge. c harLes a. w iegand , iii, f UndaMentaLs 34 Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 18, 2017). syLUM 35 d ree K. c OLLOP y , aiLa , 323-328 (7th ed. 2015). riMer P ’ a s 36 Special Immigrant Juveniles are children who have been abandoned, abused or neglected, put into the custody of an individual or entity, and whose best interests a court has found not to be served by returning to their home country. 8 U.S.C. § 1101(a)(27)(J). 37 Telephone Interview with Yasmine Chahkar Farhang, Staff Attorney, Make The Road N.Y. (Dec. 13, 2017). Note that USCIS’s reasoning is misguided at best. See, e.g. , Leslie H. v. Superior Court , 168 Cal. Rptr. 3d 729, 737 (Cal. Ct. App. 2014) (“A state court’s role in the SIJ process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their home country.”). 38 Telephone Interview with Alexandra Peredo Carroll, Pro Bono Coordinating Attorney, Kids in Need of Def. (KIND) (Dec. 20, 2017). Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 8

11 ! Examples of Questions Regarding Gang Involvement From Immigration Judges and USCIS Adjudicators: Even if you did not want to, did you ask anyone to give things to a gang, like 1 money? Do you know anyone associated with MS-13? 2 Do you have family members/friends/housemates associated with gangs? 3 How do you know information about gangs if you were not a gang member? 4 Plenty of people come arguing they are fleeing gangs and they are gang 5 members themselves...are you a gang member? If gangs wear Vans shoes, why are you wearing Vans shoes? 6 For a fuller list of questions, see Appendix A ________ Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 9

12 In some cases, no evidence was put forward, or allegations were simply made directly by the immigration agency, such as a Homeland Security Investigations report, ICE interview notes including the Form I-213, asylum-related interview notes, or Office of Refugee Resettlement records. Social media pictures were frequently used, often showing the young person wearing certain clothing items, and hanging out with friends. Other evidence included some aspect of the noncitizen’s oral testimony or written submission, school records, field office police notes or criminal dispositions, detention or custody records, tattoos or clothing, as well as other witness testimony. According to survey responses, the most commonly used types of evidence are police reports, immigration records, social media, tattoos, gang database results, client testimony/admission, criminal records, Homeland Security Investigation reports, memos from federal law enforcement, clothing, and ORR records. Criminal and law enforcement records in many cases did not indicate the young person was accused of a crime. In interviews, attorneys described many instances where local law enforcement wrote vague reports that a young person was stopped and frisked in a “known gang area,” which could include an entire neighborhood, or that the young person was in the company of “gang members,” 39 thereby making them a gang associate. In interviews, many attorneys related that they were not certain of the original source of the gang allegation. Some interviewees stated they believed state or local police had made an original investigatory note which was later shared with immigration officials either through gang databases or more informally, and others believed ICE Annotations made by undisclosed immigration officials. or USCIS was the source of the allegation. Immigration officials have even alleged gang membership because the young people were themselves victims of gang violence, reasoning that the victimization must be 40 because of rival gang membership. Living in a certain neighborhood, being seen in a particular public park, and associating with people who are accused of gang membership, even if it is not a voluntary association, are all factors attorneys identified as reasons for a gang 41 allegation. 39 Telephone Interview with Elizabeth Badger , Senior Attorney, Kids in Need of Def. (KIND) (Dec. 28, 2017); Telephone Interview with Alexandra Peredo Carroll, Pro Bono Coordinating Attorney, Kids in Need of (KIND) (Dec. 20, 2017); Telephone Interview with Julio Henríquez, Law Offices of Julio Henríquez Def. (Dec. 20, 2017). 40 Telephone Interview with Elizabeth Badger , Senior Attorney, Kids in Need of Def. (KIND) (Dec. 28, 2017); Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 18, 2017). 41 Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 19, 2017). Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 10

13 ! SARAVIA v. SESSIONS While this survey did not specifically gather information related to the case, Saravia v. Sessions the authors note that during our research for this report, the ACLU filed a lawsuit against several agencies within the federal government for using dubious claims of gang affiliation to illegally detain teenagers in jail-like conditions in California. The federal district court provisionally certified a class, so that the lead plaintiffs could represent a broader class of immigrant children and their , No. 17-CV-03615-VC, 2017 WL 5569838 (N.D. Cal. Nov. 20, 2017). families. See Saravia v. Sessions that there must be a hearing for affected children in custody as of The judge ordered in Saravia November 20, 2017 to determine if they should continue to be held in custody. Many of the Saravia class members were youth who lived and went to school in Long Island but were detained far from home in California, Texas, Washington, and Virginia. The ACLU reported that as of December 20, 2017, twenty-two out of thirty-four teenagers originally identified as class members had been 42 released, while other hearings were still in process. As one of the attorneys in the Saravia suit stated: “When these teenagers were given a chance to dispute the charges against them, it became crystal 43 clear that the government’s accusations weren’t backed up by evidence.” 42 Press Release, ACLU, Twenty-two Immigrant Teens Freed after Wrongful Arrests by the Trump Administration (Dec. 20, 2017), https:// www.aclunc.org/news/twenty-two-immigrant-teens-freed-after-wrongful-arrests-trump-administration. Id. 43 Social media pictures are commonly used as evidence, were also listed, as well as other items such as drugs, according to survey respondents. When asked more rosaries, or doodles from a notebook. specifically about social media, survey respondents In follow up interviews, attorneys explained social media said the types of evidence pulled from social media evidence was often flimsy. For example, the hand signals were most commonly photographs taken by the noncitizen or their peers (19 of 26 responses), but also may simply be gestures, or the popularly used peace one individual reported only a stock photograph was sign. Certain brands and sports teams purported to be used, or that there was a combination of stock photos gang apparel by ICE are very popular amongst certain 44 and personal ones (six of 26 responses). The aspects Attorneys reported hats Latino youth music culture. bearing the logos of popular sports teams had been of the photographs that the accusations were based upon were most commonly hand signals, specific the basis of gang allegations—including the Chicago 45 Bulls, Los Angeles Lakers, and Brooklyn Nets. items of clothing or colors of clothing, and friends or Popular brands and styles of clothes, including Nike Cortez associations in the photograph. Tattoos or weapons 44 Telephone Interview with (Dec. 28, 2017). Senior Attorney, Kids in Need of Def. (KIND) , Elizabeth Badger 45 Telephone Interview with Julio Henríquez, Law Offices of Julio Henríquez (Dec. 20, 2017); see also Telephone Interview with Yasmine Chahkar Farhang, Staff Attorney, Make The Road N.Y. (Dec. 13, 2017). Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 11

14 association, or affiliation), but they are saddled with the sneakers and Michael Jordan shoes or shirts have also 46 Similarly, gang colors herculean task of proving an undefined negative: that been the basis of allegations. cited are two popular colors for clothes, including blue they are not gang-involved, whatever that term or idea may mean to the government. for MS-13, which is also a color of the Salvadoran flag, as well as red, for 18th Street Gang. Contradictorily, in one case, the same youth was targeted for wearing both blue and red. “[S]ocial media [is used] to allege facts, [and] the judges then just accept [them] without asking for more.” Lenni Benson, Professor of Law and Director Safe Passage Project Clinic, Safe Passage Project Attorneys have noted lack of transparency as a hallmark of the federal government’s evidence of gang allegations in immigration proceedings. Often attorneys cannot determine the original source of a gang allegation. For example, an ICE agent may state the client is a “verified” or “known” gang member through the I-213 or 47 an Homeland Security Investigations report, but there is no information regarding how that determination Annotations made by undisclosed immigration officials. 48 was made. Similarly, attorneys also report that they’ve never been provided a formal definition of gang member, associate or affiliate in a hearing or adjudication, so it is not clear if there are even standards regarding what or how many factors must be present for a determination 49 to be made. Even when the evidence is social media “Once DHS throws it [the pictures, some respondents noted that the pictures gang allegation] out there, it which were submitted as evidence of gang membership becomes the Respondent’s had handwritten markings on the photographs indicating what was supposed to be significant, but the burden to prove a negative source of handwriting was undisclosed, and therefore which is almost impossible.” it was unclear whether the author had the expertise to 50 make that determination. A central complaint from Nanya Thompson, Esq., Nanya Thompson Law, Inc. attorneys was that not only are accused immigrants left to prove a negative (lack of gang membership, 46 Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 18, 2017); Telephone Interview with Julio Henríquez, Law Offices of Julio Henríquez (Dec. 20, 2017); Telephone Interview with Yasmine Chahkar Farhang, Staff Attorney, Make The Road N.Y. (Dec. 13, 2017). 47 See Appendix B for a sample HSI report alleging gang affiliation. 48 Telephone Interview with Adina Applebaum, Senior Attorney, Immigration Impact Lab, Capital Area Immigrants’ Rights (CAIR) Coal. (Nov. 30, 2017). ; Telephone Interview with Elizabeth Badger, Senior Attorney, Kids in Need of (KIND) (Dec. 28, 2017); Telephone Interview with Alexandra Peredo Def. 49 Id. Carroll, Pro Bono Coordinating Attorney, Kids in Need of Def. (KIND) (Dec. 20, 2017); Telephone Interview with Julio Henríquez, Law Offices of Julio Henríquez (Dec. 20, 2017); Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 18, 2017); Telephone Interview with Yasmine Chahkar Farhang, Staff Attorney, Make The Road N.Y. (Dec. 13, 2017). Telephone Interview with Elizabeth Badger , Senior Attorney, Kids in Need of Def. (KIND) (Dec. 28, 2017) (referring to “handwritten scribbles” on the 50 photos); Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 18, 2017). Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 12

15 51 the item is what the proponent claims it is” ), including What strategies have attorneys used to photos from social media; and objecting on the basis fight allegations of gang involvement? that the I-213 contained information from the juvenile delinquency system obtained in violation of state confidentiality laws. Attorneys reported a number of strategies they are employing to fight gang allegations, including: In in-depth interviews the authors conducted with 11 conducting public records searches to prove lack of attorneys following the national survey, practitioners gang involvement, objecting to evidence, submitting reported using the following types of counteracting evidence to prove the client’s positive community evidence: client testimony, school attendance records, involvement, and putting forth evidence to show the evidence of employment, letters of support/affidavits unreliability of the government’s gang claims. The from community members, live lay witnesses, attorney most common strategy used by attorneys was having affirmations from public defenders making clear any their client testify regarding the allegations against criminal history was not gang-related, and character them: more than three-quarters of survey respondents references from school and church. Attorneys also reported having their clients testify when accused of reported submitting reports and/or news sources gang involvement. The next most common strategies regarding the unreliability and over-inclusiveness of employed were submitting counteracting, positive gang databases or gang allegations. See Appendix C evidence and objecting to the admission of evidence for select resources regarding the unreliability of gang submitted by ICE counsel. databases and allegations. In addition, other strategies employed were: submitting a declaration from a gang The most common grounds for objections that attorneys expert, having oral testimony from a gang expert, reported relying upon were (in order of frequency): filing state records requests to verify that there was unreliability of the documents the government sought no underlying evidence of gang allegations that ICE to introduce (especially the ICE police report, Form could be relying upon, and arguing that state privacy I-213); hearsay contained in documents the government laws or the Family Educational Rights Privacy Act had sought to introduce without the ability to cross-examine been violated in improperly sharing information with the author; a lack of foundation for documents (in ICE and the evidence should therefore be suppressed. other words, seeking to introduce a document without Gang experts were used to provide testimony that providing “evidence sufficient to support a finding that f ed . r. e vid . 901. Although the Federal Rules of Evidence do not strictly apply in removal proceedings, Singh v. Holder , 638 F.3d 1196, 1209 (9th Cir. 2011), 51 they are viewed as the benchmark for fair handling of evidence in adversarial proceedings. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 13

16 indicators of gang membership were not present in a What strategies have attorneys particular case, as well as to debunk ICE’s faulty and employed to bolster their client’s case over-inclusive generalizations about clothing choice when gang membership (either former or particular hand gestures, which were the basis for 52 allegations. or current) was uncontested? While the vast majority of survey respondents discussed cases of unsubstantiated gang membership, some survey respondents discussed experiences of representing former gang members. There is extensive research about children who have been forcibly recruited by gangs, who then later renounce and flee the gangs, but are marked for death as a result. In a leading federal case out of the Fourth Circuit, Julio Ernesto Martinez sought protection in the US after 53 renouncing MS-13 when he was 16 years old. After being stabbed repeatedly and left for dead by the gang “Due process is out in El Salvador, Julio fled to the United States, where he 54 was eventually granted asylum. the window once In these cases in which prior gang membership was the gang allegation uncontested, attorneys reported employing the following strategies to bolster their client’s application: comes in” having the client testify as to their rehabilitation, Julio Henríquez, Law Offices of Julio Henríquez putting on lay witness testimony regarding the client’s rehabilitation, providing evidence of their client’s involvement with a gang prevention group, submitting expert written or oral testimony, and putting forth other evidence of the client’s rehabilitation, such as employment records, proof of community involvement, letters from pastors and employers, and the like. When gang membership was uncontested, respondents reported that it was used against clients in the following ways: to support an allegation that the security related Through in-depth interviews with 11 attorneys—all of inadmissibility ground was triggered; to support whom have handled multiple cases involving allegations issuance of a Request for Evidence in the U visa context; of gang involvement—the authors learned that in only as a basis to deny on discretion in a lawful permanent one case had a judge sustained an objection to the resident application; to argue that the client lacked admission of the I-213 based on unreliability; in other “good moral character”; to argue against a bond due cases, judges either simply admitted the evidence or to “dangerousness”; to argue that the asylum applicant admitted the evidence but stated that they would take triggered the serious nonpolitical crime bar; to argue the objection into account in determining what weight against discretion for asylum; and to argue that the to give to the evidence. In other cases, attorneys had asylum applicants had committed a particularly serious not objected or had not yet had occasion to object to crime or serious nonpolitical crime in the home country, the admission of evidence. despite the applicants being children at the time of the activities. 52 Telephone Interview with Sarah Sherman-Stokes, Assoc. Dir., Immigrants’ Rights and Human Trafficking Clinic, Bos. Univ. (Dec. 18, 2017); Telephone Interview with Julio Henríquez, Law Offices of Julio Henríquez (Dec. 20, 2017). Former Salvadoran Gang Member Says He’s Living Right and Deserves U.S. , 740 F.3d 902 (4th Cir. 2014). See also, Pamela Constable, Martinez v. Holder 53 he t 18, 2014), Protection , ay (M Ost P On ashingt w https://www.washingtonpost.com/local/former-salvadoran-gang-member-says-hes-living-right-and-deserves-us-protection/2014/05/18/1aa2e7e6-dacd-11e3- 8009-71de85b9c527_story.html?utm_term=.30f37fba7e48 54 Id. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 14

17 ! Affirmative Measures Attorneys are Employing to Decrease the Risk of Gang Allegations Many attorneys have started taking preventative measures, warning their clients of the sweeping nature of gang allegations, and dangers of using social media, even if they are simply posting pictures of themselves and other classmates, as well as performing more intensive screenings and public records requests to detect the risk of allegations. Eighty-four percent of respondents indicated that they ask questions to identify possible gang allegations or accusations when they are screening their clients; 63% provide know your rights information to their clients about the consequences of gang allegations, including social media and related risks; 54% employ Freedom of Information Act (FOIA) requests to try to obtain information about any possible gang allegations in the immigration file (such as an allegation of gang membership in a detention record or in the ICE police report, Form I-213); and 40% check their clients’ social media accounts for possible indicators that the government may allege gang involvement. In “know your rights” presentations to young people, attorneys reported focusing on the use of social media, explaining what is public, what could be accessible by immigration officers, and why seemingly benign use of social media can present risks for immigrant youth. Other affirmative measures that attorneys have taken include: doing school records requests or public records requests to regional intelligence centers or gang databases, educating school officials about the risks to noncitizen youth when allegations of gang involvement are shared with ICE, discussing tattoos with clients and considering having them removed, and educating clients not to speak to DHS without counsel present. In addition, attorneys reported exercising increased discretion in terms of which cases to file affirmatively (in other words, when the client is not actively facing deportation but wants to apply for some kind of immigration status), and in framing claims where the client has had any prior contact with gangs, however minor and regardless of whether it was consensual. From Facebook to Deportation: Oscar’s Story attorney the run around. Eventually, ICE’s gang unit Oscar fled El Salvador when he was 14, after his shared the basis for his detention—print outs from mother abandoned him and his grandmother became too elderly to care for him any longer. He eventually Facebook, showing Oscar wearing certain clothing and hanging out with certain friends. Also, a photograph reunited with his father in Massachusetts, and his father filed for sole custody over him, as Oscar began the of Oscar at a soccer game where allegedly some gang 55 members hung out was used. process to seek Special Immigrant Juvenile status. When Oscar neared age 16, ICE arrested him and In the detention facility, Oscar was bullied and beaten up, and as a result, he was transferred twice—to transferred him to a youth detention facility hours away New York, and then Virginia. After eventually being from his father and his immigration lawyer. Oscar had transferred to an adult ICE facility on his 18th birthday no prior contact with law enforcement—he had never and losing a bond hearing, Oscar asked to be deported. been arrested, or even suspended from school. His As his attorney said, “anyone would break after being immigration lawyer described feeling like Oscar was 56 thrown into a black hole, where everyone gave the in prisons like this.” supra note 55 For more on Special Immigrant Juvenile Status, 37. see Telephone Interview with Talia J. Barrales, Law Offices of Talia Barrales, P.C., (Feb. 14, 2018). 56 Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 15

18 Conclusion and Recommendations Over his campaign and presidential administration, member or associate, and even lacks definitions President Trump has relentlessly attacked of these basic terms. Allegations are pervasive— immigrant communities across the United cropping up in various parts of the federal government —from officials within the Office of Refugee and States and has maintained a focus on deporting Resettlement (ORR), US Citizenship and Immigration immigrant youth of color, who he erroneously equates with the threat of gang Services, and Immigration and Customs Enforcement violence and to the immigration courts. Allegations may adversely the destruction of American communities. affect immigrant youth in seeking any number of Some immigration officials have taken the immigration protections, and often result in detention in jail-like facilities. This survey also found that the administration’s rhetoric as carte blanche to increase evidence immigration officials are employing is wildly their own use of allegations of gang involvement erratic and often unfounded, or simply emblematic as a tool to pursue immigration enforcement of what it means to be a poor, young person of color against Latinx youth. The findings of this survey demonstrate the disturbing trend of xenophobic residing in a community suffering from gang violence. “Trumpism” trickling down throughout the far As a result, families are being torn apart by reaches of the Department of Homeland Security. deportation, immigrant youth are seeing their futures Gang allegations are appearing in immigration destroyed at the hands of an often-false allegation or proceedings from coast to coast. Immigration law past mistake, and this country’s stated commitment to fairness, due process and equality is being called into and policy lacks standards for what level of evidence question. must be provided before labeling someone as a gang “My overarching concern is the increasing criminalization of prototypical teenage behavior, and the idea that black and brown young people engaging in typical teenage behavior automatically raises gang allegations.” Sarah Sherman-Stokes, Associate Director, Immigrants’ Rights and Human Trafficking Program, Boston University School of Law Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 16

19 Conclusion and Recommendations (continued) The authors offer the following recommendations for immigration attorneys representing young clients impacted by gang allegations or involvement: Emerging Best Practices for Immigration Attorneys Representing Clients with Gang Allegations: Screen clients for possible gang allegations or accusations and provide know your rights 1 information about the consequences of gang allegations. Discuss preventative measures with immigrant youth by warning them about the dangers of 2 gang allegations and the various consequences of social media. Perform intensive records requests. 3 Effective strategies shared by immigration attorneys who represent immigrant youth facing 4 allegations of gang involvement include: a. Fighting gang allegations by conducting public records searches to prove lack of gang involvement; objecting to evidence; submitting evidence to prove the individual’s positive community involvement; putting forth evidence to show the unreliability of the gang allegations; having individuals testify about the allegations against them; submitting evidence from gang experts; arguing privacy law protections. b. In cases where immigrant youth were involved with gangs: having individuals testify about how their lives have changed; presenting witnesses that can talk about how an individual’s life has changed; showing evidence of involvement with a gang prevention group; and submitting employment records, proof of community involvement and other equities. Support local campaigns to protect individuals facing deportation and work collaboratively 5 with community-based organizations and immigrant rights organizers. Develop advisals for clients wishing to engage with media or other storytelling practices. 6 Share tips and learnings on representing individuals facing gang allegations with other practitioners. The authors also call on policymakers to reject and build opposition against legislative proposals that seek to expand the harshness of immigration law to target immigrant youth based on gang allegations. Lastly, the authors ask that journalists investigate and report on immigrant youth impacted by gang allegations or gang involvement from a nuanced lens, one that takes into account the attempts by this administration to use the policies and practices of its immigration agency to push forth its agenda of racially motivated exclusion. Important work continues to ensure that this country’s immigration laws and policies accurately reflect the society’s values of fairness, justice and ensuring all young people, regardless of immigration status, can access a future of opportunity and growth. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 17

20 Appendix A Questions From Immigration Judges and USCIS Adjudicators about Gang Affiliation reported by Survey Respondents Associate/Affiliate Supporting/Helping the Gang • Did you [or a family member] give the gang Have you hung out with gang members or been • money, or pay fees? affiliated with a gang? • Have you ever carried anything for the gang? Were you aware that the men you were spending • • Did you ever help anyone in a gang in any way? time with were in a gang? Even if you did not want to, did you give food or • • Do you know gang members? [sometimes specify money to a gang? a name of someone] Even if you did not want to, did you ask anyone to • Do you know who the leader of the gang in your • give things to a gang, like money? town was? • Did you ever do any favor for a gang even if you • Do you know anyone associated with MS-13? did not want to? • Have you ever had contact with 18th Street Gang? Even if you did not want to, did you ever run • Do you know anyone who became a gang • errands for gang members? member? Did you buy or transport anything for a gang? • Have you ever had any contact with a gang • member? Knowledge of Gangs Do you have family members/friends/housemates • associated with gang? How do gangs initiate people? • • Have you ever been involved with a gang? • What do you know about gangs? Do you know what MS-13 is? What is it? • • What was the name of the gang? Renounce/Refuse Recruitment How do you know information about gangs if you • were not a gang member? • Have you ever been recruited or approached by gang members? If not joining the gang meant death, why did you • Current or Former Gang Member refuse to join the gang? Plenty of people come arguing they are fleeing • Why did you put up with the gang recruitment for • gangs and they are gang members themselves... so long? Are you a gang member? Have you asked anyone to join a gang? • Have you ever joined a gang? • Have you formally renounced gang membership? • Isn’t it true you were a member of the 18th Street/ • Why didn’t the gang beat you out? • MS-13 gang? • Why do you think that the gang let you leave? Clothing/Hand Signals Gang Activities • Ask about clothing worn in Facebook pictures (i.e. Bulls hat, Nike Cortez sneakers, blue and white • What gang activities were you involved with in Salvadoran shirt, rosary beads) prison? • If gangs wear vans shoes, why are you wearing What did you do for the gang? • vans shoes? • Were you a gang lookout? • Is that haircut something that gangs wear? Did you do any spying or watching for a gang? • Do you know any gang hand signs? • • Did you collect money for the gang? • Have you ever worn a shirt with an 18 on it? Can you do the hand signs? • Tattoos • What colors do the gangs wear? • Do you have a tattoo? Tell me about it. • What is the significance of that tattoo? Social Media Is your tattoo gang-related? • • Who is this [Facebook friend]? • Who are the people in this photo [from client’s Facebook page]? Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 18

21 Appendix B Sample HSI Report with Social Media Pictures Annotations made by undisclosed immigration officials. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 19

22 Appendix B (continued) Annotations made by undisclosed immigration officials. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 20

23 Appendix B (continued) Annotations made by undisclosed immigration officials. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 21

24 Appendix B (continued) Annotations made by undisclosed immigration officials. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 22

25 Appendix B (continued) Annotations made by undisclosed immigration officials. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 23

26 Appendix B (continued) Annotations made by undisclosed immigration officials. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 24

27 Appendix C Select resources regarding the unreliability of gang databases, fusion centers and gang allegations Reports and Complaint rOng g & J ay s tanLey , w hat ’ M w erMan with f UsiOn c enters ? (ACLU ed., 2007) https://www.aclu. ichaLe s org/files/pdfs/privacy/fusioncenter_20071212.pdf. f UMar ibbLe , d hs P rivacy i MP act a ssessMent K Or the i cegangs d atabase 6 (DHS ed., 2010) https://www. K dhs.gov/xlibrary/assets/privacy/privacy_pia_ice_icegangs.pdf (“ICEGangs may contain records about individuals who are neither gang members nor associates . . . It is important to note that ICEGangs data is never used directly as evidence to prosecute crimes . . . ICEGangs is solely a data repository with limited search and analytical tools that help user identify individuals and organizations that may be involved in gang-related criminal activity.”). s ean g arcia -L eys , M eigan t hOMPsOn & c hristyn r ichardsOn , U niv . c aL . s ch . L. i MMigrant r ights c Linic , and M a LLegatiOns O f g ang M eMbershiP isLabeLed t heir i MMigratiOn c OnseqUences 1 (Sameer Ashar & Annie Lai, eds., 2016), http://www.law.uci.edu/academics/real-life-learning/clinics/ucilaw-irc- MislabeledReport.pdf . OweLL e Laine M. h . s , c aL tate a Udit Or , n O . 2015-130, t he c aL gang c riMinaL i nteLLigence s ysteM (2016) https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf. First Amended Petition for Writ of Habeas Corpus & Class Action Complaint for Injunctive and Declaratory Relief at 1, 10–11, 17–18, Gomez v. Sessions, No. 3:17-cv-03615-VC (N.D. Cal. Aug. 11, 2017), https://www.aclunc.org/docs/20170811-first_amended_petition.pdf. taff Of s. c OMM . On h OMeLand s ec . & g Ov ’ taL s ffairs , P erManent s Ubc OMM . On i nvestigatiOns , 112t h c Ong ., a r eP . On f ederaL s UPPOrt and i nv OL veMent in s tate and L OcaL f UsiOn c enters , (2012) www.hsgac.senate. gov/download/report_federal-support-for-and-involvement-in-state-and-local-fusions-centers&u sg=AOvVaw1NtmH7JCVM1lSUo3N5Jz8I (“In interviews, current and former DHS officials involved in the fusion center reporting process stated they were aware that ‘a lot of [the reporting] was predominantly useless information,’ as one DHS official put it.”). Law Review Articles Laila L. Hlass, , Ga. St. U.L. Rev. (forthcoming 2018), draft available The School to Deportation Pipeline at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3132754. Rebecca A. Hufstader, Note: Immigration Reliance on Gang Databases: Unchecked Discretion and Undesirable Consequences , 90 N.Y.U.L. r ev . 671 (2015). Kevin Lapp, Databasing Delinquency , 67 h astings L.J. 195 (2015), http://www.hastingslawjournal.org/ wp-content/uploads/Lapp-67.1.pdf. . J. C.R. & C.L. 115 (2005). tan Joshua D. Wright, The Constitutional Failure of Gang Databases , 2 s Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 25

28 Appendix C (continued) News Articles Beware of Gangster Babies: California Database Slammed , CBS (Aug. 15, 2016), https://www.cbsnews. com/news/calgang-california-gang-database-slammed-listing-babies-privacy-concerns/. Sarah Gonzalez, MS-13 Gang Crackdown Relies on ‘Questionable’ Evidence from schools , WNYC (Aug. 7, 2017), https://www.wnyc.org/story/ms13-gang-police-crackdown-schools/?utm_source=tw&utm_ medium=social&utm_content=wnyc. ICE Releases Brentwood Student Accused of MS-13 Affiliation , n ews 12 L Ong i sLand (Aug. 8, 2017, 7:35 PM), http://longisland.news12.com/story/36090140/ice-releases-brentwood-student-accused-of-ms- 13-affiliation. Jennifer Medina, Gang Databases Criticized for Denying Due Process May Be Used for Deportations , n. y. t iMes (Jan. 10, 2017, 9:10 PM), https://www.nytimes.com/2017/01/10/us/gang-database-criticized- for-denying-due-process-may-be-used-for-deportations.html?pagewanted=all&_r=0. Joel Rose & Sarah Gonzalez, Despite Escaping to the U.S., These Brothers Are Still Terrorized by the MS-13 Gang , NPR (Aug. 16, 2017, 5:04 AM), http://www.npr.org/2017/08/16/543830343/ms-13- creates-fear-from-central-america-to-the-u-s. Christie Thompson, How ICE Uses Secret Police Databases to Arrest Immigrants , M arshaLL P rOJect (Aug. 28, 2017), https://www.themarshallproject.org/2017/08/28/how-ice-uses-secret-police- databases-to-arrest-immigrants#.jmpx7G02U. California Gang Database Plagued with Errors, Unsubstantiated Entries, State Auditor Richard Winton, , L.a. t iMes Finds (Aug. 11, 2016, 9:10 PM), http://www.latimes.com/local/lanow/la-me-ln-calgangs- audit-20160811-snap-story.html. Ali Winston, Marked for Life: U.S. Government Using Gang Databases to Deport Undocumented Immigrants , i ntercePt (Aug. 11, 2016, 10:34 AM), https://theintercept.com/2016/08/11/u-s-government- using-gang-databases-to-deport-undocumented-immigrants/. Ali Winston, Obama’s Use of Unreliable Gang Databases for Deportations Could Be a Model for Trump , i ntercePt (Nov. 28, 2016, 12:24 PM), https://theintercept.com/2016/11/28/obamas-use-of- unreliable-gang-databases-for-deportations-could-be-a-model-for-trump. Deportation By Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members 26

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