Daniel Ramirez Medina, a man who has lived in the U.S. since he was a child, was almost deported because of a tattoo. In a small victory for immigration rights earlier this week, a federal judge ruled in favor of Medina, a Deferred Action for Childhood Arrivals recipient who was detained by Immigration and Customs Enforcement officials despite his DACA status, then stripped of his status because ICE alleged, pointing to his tattoo, that Medina was a gang member and thus eligible for deportation. When U.S. District Judge Ricardo S. Martinez ruled that ICE violated due process procedure, he also chastised ICE for making “the continued assertion that Mr. Ramirez is gang-affiliated, despite providing no evidence specific to Mr. Ramirez to the Immigration Court in connection with his administrative proceedings, and offering no evidence to this Court to support its assertions four months later.” Medina’s case is just one example of how the agency, which has long acted with impunity, is increasingly using a bold, brutal tactic when attempting to deport immigrants: Claiming people are gang members based on the flimsiest of “evidence.”
What happened to Medina is not an isolated incident. A new report published this week by The New York Immigration Coalition (NYIC) and the Immigrant and Non-Citizen Rights Clinic (INRC) at the CUNY School of Law found that law enforcement officials and immigration agents are increasingly profiling communities of color in New York to allege gang affiliations that then become the basis for visa application denials, detention without due process, and even deportation. It’s a cycle and a trap: The thing you are being accused of becomes the reason you can’t contest the accusation. The report, Swept up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers, likens the use of gang databases and affiliations to unconstitutional stop-and-frisk policy employed by NYPD that profile and endanger communities of color.
The strategy is part of Donald Trump’s larger anti-immigrant agenda. During a roundtable discussion California’s sanctuary cities on Tuesday, Trump, in response to a comment about the MS-13 gang, characterized deported immigrants as “animals.” After Trump’s remarks were reported, he claimed his words were mischaracterized, but his history of casting immigrants as rapists and criminals, in addition to his exaggeration of the national threat of the violent MS-13 gang, has long propelled his broad anti-immigrant agenda. He has frequently lumped undocumented immigrants in with the brutal MS-13 gang, and said the gang has turned communities on Long Island “into blood-stained killing fields.” In April 2017, Trump tweeted, “The weak illegal immigration policies of the Obama Admin. allowed bad MS 13 gangs to form in cities across U.S. We are removing them fast!”
Despite Trump’s claims, experts have said that its not clear MS-13 has grown in size or danger in recent years compared to other gangs in the U.S., and in fact argue that Trump’s stance may strengthen the gang and further the communities they harm. “This attitude that there’s a brand new threat and it’s new and it’s all immigration, there is not a piece of that narrative that is accurate,” UCLA gang researcher Jorja Leap told CNN last April. Immigrants are less likely to commit crimes than U.S. citizens.
Nonetheless, spurred by Trump’s rhetoric, in 2017, Immigration and Customs Enforcement launched “Operation Matador” aimed to “target violent gang members and their associates.” According to the National Gang Center, gangs form in the most disenfranchised communities as another symptom of social and economic inequality that plagues communities of color. The result of Matador, according to the report, is increased surveillance on communities of color by local law enforcement and federal agencies. According to ProPublica, in 2017, “ICE arrested nearly four times more immigrants simply for being suspected of belonging to MS-13 than it did in 2016.”
The report illustrates how Trump’s rhetoric has enabled ICE to profile people of color, largely without consequence. Survey responses from 43 legal service providers, community-based organizations, and community members in New York City and Long Island conducted between last November through March 2018 detail how law enforcement officials and immigration agencies “have gone beyond the publicized gang sweeps and are in fact using gang allegations broadly in the immigration removal and adjudications process.” More than three-thirds (78 percent) of respondents said that law enforcement made vague allegations or expressed suspicion about gang affiliations about clients or community members. The results also showed a correlation between the allegations and eventual arrests, and respondents said that both the Department of Homeland Security and the Department of Justice “have used gang allegations to deny applications for benefits and justify the detention and deportation of Latinx community members.”
Law enforcement agencies have long tracked suspected gang members through gang databases. There is no federal law prohibiting gang-affiliation, but gang membership laws vary from state to state, and gang membership can impact a sentencing. Local jurisdictions have the authority to make up the criteria for what constitutes a gang affiliation with no oversight or regulation. This has left room for rampant abuse. “Gang databases are secret. There’s no right to notice or appeal. A person can be put on a gang database any reason. The criteria don’t require any criminality,” Babe Howell, a CUNY criminal law professor who has been studying gang allegations and databases for a decade, said on a press call announcing the report. The NYPD and Nassau County Police Department only unsealed their criteria after Howell submitted a Freedom of Information Law request.
A New York City police officer can enter an individual into the gang database if the person meets a handful of loose criteria, which includes being seen at a “gang hangout”—which may often be a public park or bodega, according to Howell—or wearing colors associated with gangs, or merely having a tattoo officers allege is a gang symbol, as they did with Medina. This criteria is similar to other database criteria across the country, according to the report. In New York, there is no way for an individual to challenge their inclusion in the database.
Records in a gang database then become the basis of creating evidence, even without proof of criminal activity. The record then becomes a self-fulfilling prophecy for law enforcement. “Anyone that they can even remotely link to MS-13: They have a family member who was a gang member or they were seen sitting in class next to someone who was a gang member, they’re fair game,” immigration lawyer Bryan Johnson told NPR when commenting on a separate case about a high school junior ICE detained after school officials found weed in her locker. Immigration officials justified the detention by alleging she was “observed” with “other confirmed MS-13 members” at school.
In April, ProPublica and New York Magazine published a tragic story about Henry, a teenager who fled MS-13 in El Salvador and was granted asylum in the U.S. He resettled in Long Island, where MS-13 found him again. Henry, who is also represented by Johnson, tried to leave the gang and became an FBI informant in exchange for entry into the witness protection program. He handed over names of gang members and their targets, helping to save lives and offering officials insight into a notoriously private, and dangerous, group. After his cooperation, however, ICE detained him and is still planning to deport him. Henry is still in detention, where he fears other MS-13 detainees will kill him for being an informant. If he’s sent back to El Salvador, MS-13 will kill him there. ICE’s cruel betrayal threatens Henry’s life and also deters other gang members from ever coming forward, only bolstering the gang’s foothold. “Sometimes I feel like a piece of string being pulled from both ends,” said Henry. “Sometimes, I think it would be better to be dead than to have done the things I’ve done. I know it would be better never to have talked to anyone.” Days after the story ran, a judge declined a ruling at Henry’s deportation hearing, enabling Henry’s legal team to make an asylum claim. Henry will continue his testimony on May 22 and Johnson is gathering donations for the teen here.
The survey suggests that the horrific experiences of immigrants like Henry are not an aberration, but the new norm under Trump. In November last year, ICE assistant special agent Jason Molina admitted that agents classified an undocumented immigrant as a gang member specifically to enable his deportation. “The purpose of classifying him as a gang member or a gang associate is because once he goes in front of an immigration judge, we don’t want him to get bail, because the whole point of this operation is to get these known gang members off the street,” Molina told CBS.
While gang databases are not new, Howell says that under Trump, “this kind of use of gang database is its kind of premiere place in policing now.” Molina’s own admission, the survey results, and the increase in arrests of immigrants makes it clear that the Trump administration is using gang affiliation as a strategy to remove immigrants from this country.
“By using gang databases and gang allegations to cut out any kind of due process or judicial review,” she said, “we now have a world in which policing is moving into the shadows and collecting information with no review whatsoever, and that is a very big shift.”