Latino youth beware! You may be a gang member and not even know it! And no, you might not be able to dispute that label if it is made by ICE. Welcome to America, or rather….. Farewell.
President Trump’s Executive Order on Immigration and his Implementation Memo dated 2/20/17 are aimed to “take the shackles off” of the nation’s immigration enforcers. According to Sean Spicer, the EO makes it clear that “the No. 1 priority is that people who pose a threat to our country are immediately dealt with” (New York Times 2/21/17). Among others, this means gangs, or at least people ICE decides are gang members.
And that’s the rub. Bureaucratically law enforcement has a process to officially label a youth a “gang member.” There are checklists like this one:
However the judgements are highly subjective. In the recent highly publicized case of Ramirez Medina, ICE agents apparently mis-identified a tattoo as “gang related” and although Ramirez was a DACA protected Dreamer, held him as a gang member and began deportation proceedings.
Law enforcement agencies have a long history of stereotyping and mis-labeling minority youth as gang members. In Los Angeles, California Supreme Court Justice Chin questioned official gang identifiers, pointing out that “the City would consider a person to be a member of a Sureño gang if, for example, that person on two occasions wore baggy pants, blue clothes, or 'Los Angeles Raiders' garments.” In Denver police created a data base that classified an astounding two out of every three black youth as gang members.
As one law review article put it, police officers and ICE agents already “exercise virtually unchecked discretion” when it come to gangs. This means racial stereotypes can be given free reign. A deportation case I consulted in demonstrates how dangerous stereotypes plus ICE's “unchecked discretion” can be. For obvious reasons I changed the name of my client and masked some of the circumstances.
Dante Menzies was a 15 year old high school student. He was a rebel, and he and two friends formed a group called “Cholo or Die.” They spray painted it on walls and had hats made with “COD” letters. One of Dante’s friends got into a tussle with a teacher. Dante intervened and punches were thrown. Dante was arrested, and then the astounding happened.
The local police claimed out of the blue that Dante was a “Sureño,” and COD, Dante's gang of three, was a chapter of MS-13. He was turned over to Homeland Security and subject to deportation. His lawyer called me and I interviewed Dante via Skype, reviewed the documents, and talked to local police officials. My question was simple: how did the officer determine Dante was a MS-13 member?
The checklist above is from Dante’s case. Here is the evidence: the graffiti on buildings was Dante and his two friends writing “COD” on the school bathroom walls. Dante apparently was determined to be MS-13 because he wore the color blue..... and get this, the only blue he had on were his blue jeans. The arrest for a violent crime was the juvenile adjudication of delinquency in the scuffle which resulted in a couple of months in detention.
The police department refused to explain what “correspondence" named Dante a gang member. My guess is that the local Gang Investigators Association sent some background information or this referred to memos within the file between local officers. Police departments or ICE do not have to disclose “gang intelligence” information as with other evidence subject to discovery. In other words, like in this case, ICE can allege gang membership as a basis to deport and never reveal how they drew that conclusion.
I have no way to know if 15 year old Dante was actually a secret MS-13 member. But the evidence the police presented led me to conclude that Dante’s “MS-13” membership was most likely made up by the officer so deportation proceedings could begin. It was a false generalization that was necessary to justify punishing Dante, as in "Aren’t most of those Mexican kids gang members anyway?" Why not just make up the evidence — who will know?
Well the attorney called their bluff and I made an aggressive case that there was no evidence to even assume Dante was a MS-13 member. He was spared deportation but not every youthful immigrant will enjoy such advantages.
I think Sean Spicer got it right. Trump’s order is meant to “take the shackles off” ICE agents, to give them even greater discretion to act on their hunches and biases in order get “them” out of the country. The facts be damned.
Gang members, along with Muslims, are the quintessential “them” to the virtuous “us” of the all-white alt-right. Being in a gang is not illegal.....yet. But even the allegation of gang membership puts Latino youth at risk of deportation. This over-broad net of ICE predates Trump and former President Obama can't escape culpability. The fight against demonization in all its forms is an on-going struggle for us all.
Hufstader, Rebecca A. 2015. "Immigration reliance on gang databases: Unchecked discretion and undesirable consequences." New York University Law Review 90:671-709.
Leyton, Stacey. 2003. "The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases." in Crime Control
and Social Justice: The Delicate Balance., edited by Darnell Felix Hawkins, Samuel L. Myers, Randolph N. Stone,. Westport, CN: Greenwood Publishing Group.