“Violent animals.” “Menace.” “Wolves in Sheep’s Clothing.” This is the language that President Donald Trump and members of his administration have used to describe immigrants both entering and already in the country. It’s a two-step process: First, intentionally employ imprecise speech to condemn undocumented youth as a whole and then, quietly, qualify the comments. It wasn’t all undocumented youth that they meant, you see—just the MS-13 gang members, just the bad guys.
But this policy of ambiguity is far from harmless. Even before Trump, Immigration and Customs Enforcement (ICE) and other sub-agencies of the Department of Homeland Security tasked with the internal enforcement of immigration law had been known to use even the most baseless rumor of gang affiliation as a cudgel against immigrant youth, often resulting in detainment or deportation. Now, under Trump, the climate of paranoia and xenophobia has spread.
Tulane University Immigration Law Professor Laila Hlass has a long experience in representing immigrant youth and has seen firsthand the damage that spurious charges of gang ties can cause. Hlass, along with Rachel Prandini of the Immigrant Legal Resource Center, recently co-authored an analysis of their national survey of more than 70 immigration attorneys who’ve represented immigrants accused of being affiliated with a gang.
The findings are grim. At least half of the attorneys, most of whom were working pro bono, felt that the use of gang allegations was on the rise. The survey was conducted between August and December of 2017 and surveyed attorneys in 21 states and Washington, D.C.
In a conversation with The American Prospect’s Manuel Madrid, Hlass discussed the survey and her other work on the unjust targeting of immigrant youth. What follows is a condensed and edited version of that interview.
TAP: To begin with, what led you to undertake this study? What did you find?
Laila Hlass: Myself and Rachel Prandini of the Immigrant Legal Resource Center were hearing reports from attorneys across the country of gang allegations being used more frequently against young people—I saw a case firsthand. That led us to want to study this phenomenon in more depth.
Our survey shows that immigration attorneys from coast to coast feel that there has been a rise in the use of gang allegations in immigration proceedings, which raises a number of problems. The most obvious is that there is no set definition of what being a gang member is under immigration law, and so, in many instances, false and misleading information was being used against young people, increasing their chances of being detained or deported.
What does a charge gang affiliation mean for an immigrant youth in the middle of applying for some form of legal residence?
If someone is suspected of being a gang member, they’re more likely to be detained by ICE and a judge is more likely to deny their request for bond. Study after study shows that immigrants in detention are much less likely to have an attorney and much more likely to lose their case.
In terms of an application for lawful permanent residence, that is a discretionary decision made by a judge. So it’s on the immigrant to prove that they deserve any relief. If there's a single negative factor, such as a suspected gang affiliation, they're likely to be denied.
Which class of immigrant youth is the most vulnerable to charges of gang affiliation?
We heard from attorneys that it was mainly male Latino youth being targeted. They were typically between the ages of 18 and 20 years old.
How exactly do officials decide on what counts as proof of gang affiliation? In your report you include a list of example questions about gang involvement used by judges. Some of these seem absurd on their face, such as “If gangs wear Vans shoes, why are you wearing Vans shoes?” Is this really the sort of evidence being presented in court?
I saw it myself. We also heard reports, through our survey, of attorneys getting photocopies of pictures from Facebook in immigration courts on the day of their hearings. The printouts would have a hand-drawn arrow pointing to the client’s clothes in the photo (a Chicago Bulls hat or Nike Cortez shoes) with a “gang apparel” annotation underneath. That was it. That was the evidence.
In my own case, an ICE prosecutor asked about a blue shirt that my client was wearing in a particular photo on Facebook, asserting that it was a gang color. In fact, it was the required uniform at his school—those were his school colors.
That’s enough to make an allegation? Even without any sort of criminal history?
As I mentioned, there is no definition under immigration law of what being a gang member is. That means a single immigration officer or a school safety officer can make a flimsy allegation, it can trickle into the immigration system through a number of means, and then can be presented as fact in court. Immigration judges have wide discretion to find facts in court, so without any set definition of what “gang member” means. They can use information given them to make a negative discretionary finding and thereby deny a protection.
Well, if the definition of “gang member” is not clear, at the very least is the process of tracking such allegations a transparent one? Are these determinations well documented?
In my own case, the immigration prosecutor brought forth a report saying that my client was a confirmed gang member, based on other law enforcement reports, but didn't provide the actual basis for those reports. We had to do a public records request to discover that it came from a school incident report where an allegation of gang affiliation was made against him by someone in his school, completely based on hearsay. [My client] was never informed of this. He wasn’t even disciplined after the school incident. He didn’t find out until the day of his hearing that this allegation against him existed.
Do you think this trend traces back to the Trump administration specifically?
This didn't begin with Trump. President Obama made prioritizing suspected gang members a major part of his immigration policy. What does seems different now, however, is that these allegations are being used more and more often by the Trump administration. This trend is acting in tandem with the anti-immigrant rhetoric that the president uses, particularly in cases against immigrant children.
This rhetoric has permeated various government agencies. For instance, there's a new policy that directs the Office of Refugee Resettlement (ORR), normally tasked with care and custody of unaccompanied immigrant children, to integrate itself more with anti-gang efforts and to share information about children with law enforcement. They’re changing the ORR from an agency primarily occupied with child welfare to one charged with policing children.
In the past few weeks we’ve seen some heart wrenching photos coming from the border: children barely old enough to read being forced to represent themselves in court. Immigrant youth, far from the border, often are forced to face such circumstances. How well can they be expected to handle such a spurious charge of gang affiliation without an attorney’s help?
It’s impossible for these children to defend themselves. It's always been the case that non-citizen children, just like adults, don’t have a right to an appointed attorney in immigration proceedings. If they can’t secure representation, they must represent themselves.
What you see with these gang allegations is that the child is forced to prove a negative, which is very difficult to prove, obviously. It's difficult to prove that you’re not a gang member, and that's without considering that these allegations tend to lack transparency. Fighting such a charge would require various public records request and other advocacy efforts. A child is simply unable to do that, particularly a child who doesn’t speak English and who might be in detention.
You recently published a working paper in the Georgia State University Law Review titled “The School to Deportation Pipeline.” Can you tell me how the rise in gang allegations against immigrant youth ties into that work?
Immigrant youth are increasingly finding themselves in the crosshairs of a very punitive immigration system, overpoliced school systems, and an often biased law enforcement system. This phenomenon is compounded by racial biases in these systems and a lack of protections for youth in the immigration system. We see many gang allegations relying on broad and subjective criteria which can lead to misidentification and racial profiling. The same goes for over-policing in minority neighborhoods and in schools.
These factors have led to young people being pushed out of schools and forced into immigration proceedings. That’s why we call it the “school-to-deportation pipeline.” The rise in the use of gang allegations is just the newest of the many ways in which the criminal and immigration systems are working to the detriment of immigrant youth.
What can do attorneys do? What recommendations, if any, have you made to state and local governments looking to protect immigrant youth from spurious charges of gang affiliation?
On the individual level, it’s essential for attorneys to screen their clients for anything that might be twisted and used on a flimsy basis in an accusation of gang affiliation. Expert testimony can be brought in and evidence can be presented on the widespread problems inherent in gang allegations and databases.
On a larger level, we need to ensure that young people have access to counsel, and we need to advocate for requiring implicit bias education for adjudicators in the immigration system.
This article has been updated.