The Department of Homeland Security’s (DHS) policy of increasing collaboration between federal immigration officials and local criminal law enforcement authorities to detain and deport immigrants has had a devastating impact on immigrant communities. Homeland Security’s alleged focus on detaining and deporting gang members has resulted in falsely labeling many Central American youth as gang members or associates, by local law enforcement and Immigration and Customs Enforcement (ICE) agents across the country. In spring 2017, ICE conducted sweeping raids around New York City, particularly in Long Island, where there is a large Central American population. “Operation Matador” brings into sharp focus some of the most troubling tactics of immigration enforcement’s collaboration with criminal law enforcement.
Many immigrants were identified by local or federal law enforcement as gang members or gang affiliates on the basis of scant evidence; a doodle in a notebook, a tattoo, an anonymous witness statement, a Facebook post, or simply living in a neighborhood where gang activity occurs.
When the local police arrested the immigrants many were not be charged with a crime. In the vast majority of cases, the immigrant accused by ICE of gang affiliation was never charged with a crime or prosecuted in criminal court which would require proof beyond a reasonable doubt.
Law enforcement’s identification of an individual as a gang functioned as a proxy for immigration enforcement. Even when the allegation of gang membership is unsubstantiated, or predicated on evidence insufficient to result in criminal charges, immigrants face an arduous battle to prevent deportation.
The severely prejudicial nature of a gang affiliation allegation attached to their names often results in an immigration judge’s negative exercise of his discretionary authority when it comes to deportation. The Homeland Security Investigator in charge of Operation Matador revealed, the purpose of classifying [an immigrant] as a gang member or a gang associate was to prevent the immigrant from being released on bail.
Immigration enforcement’s leverage gained by alleging gang membership and/or affiliation highlights the failure of due process protections in immigration court.
When the immigrant appears before a judge the burden is on the respondents to disprove the unsubstantiated gang allegations against them. Loose evidentiary standards allow DHS to submit questionable evidence to meet its burden as immigration judges’ frequently defer to DHS and are unwilling to probe the source of DHS’s allegations. Unsubstantiated gang allegations underscore the flawed nature of immigration court hearings, particularly bond hearing, where the burden of proof is placed squarely on the detained immigrant.
Immigration detention is considered civil detention because the law classifies immigration proceedings as civil, not criminal. Although the Supreme Court has long upheld the government’s authority to detain immigrants in deportation proceedings, at least for limited durations, the capacity of the immigration detention scheme has expanded exponentially in recent decades.
Many detained immigrants facing deportation are housed in locations far from their families, communities, and attorneys (if represented). Immigrants have no right to government appointed counsel accordingly, the vast majority of detained immigrants (86% nationally) appear before an immigration judge pro se. Navigating complicated immigration procedures and laws while detained and without an attorney dramatically reduces a person’s chances of avoiding deportation.
The categorization of removal proceedings as “civil” deprives immigrants of many hard- won procedural protections afforded to individuals in criminal court proceedings. The lack of protections is especially consequential in bond proceedings where the burden of proof lies with the immigrant. In bond hearings the immigrant has the burden of convincing either DHS or an immigration judge that they should be released from detention because they are neither a danger to the community nor a flight risk.
The Supreme Court has repeatedly found in criminal and civil proceedings that where a person’s liberty is at stake, due process demands that the government bear the burden of showing why detention is necessary. Even in removal hearings, which are distinct from bond hearings in immigration court, the government bears the burden of proof in showing that a noncitizen is deportable.
Because the burden in immigration bond proceedings deviates from the norm in other civil detention proceedings, a detained immigrant is at a severe disadvantage in obtaining a bond, even if she is statutorily eligible for release. Placing the burden on the detained immigrant is an institutional choice that has made it easier for DHS to detain individuals and more difficult for immigrants to obtain release.
The immigration judge has broad discretion to grant or deny bond and can consider any evidence provided by the government, or the immigrant, and any other information the judge has. The general rule for evidence in immigration proceedings is to allow its admission if the evidence is (1) probative to the question at hand, and (2) its use is fundamentally fair so as not to deny the immigrant due process of law.
In practice, the primary factor considered for evidence is the former, whether the evidence is broadly probative and relevant, without regard to fairness concerns. Evidence is not fundamentally fair when it deprives an immigrant of the right to due process of law under the Fifth Amendment, bond hearings in immigration court tend to admit any evi- dence, with little or no consideration of how that evidence might affect an immigrant’s due process rights. Bond hearings in which ICE alleges that immigrants are gang-affiliated are especially challenging due to the flipped burden of proof, and loose evidentiary standards.
DHS attorneys allege gang membership in various ways, oral statements proffering facts, or general allegations first raised at the bond hearing by reading facts from police reports, and/or producing written internal agency documents created by ICE. DHS sometimes will introduce a patchwork of evidence, pictures of the immigrant’s tattoos taken while he is in custody, Facebook or Instagram pictures of the immigrant wearing “gang paraphernalia” like Nike Cortez sneakers or the hats or jerseys of certain sports teams, pictures in which the immigrant is standing with other alleged gang affiliates, or pictures of the immigrant using gang signs. In addition to these specific images, DHS may include general reports or articles on the threat posed by gangs or gang tattoos. Frequently, DHS may also submit news articles and PowerPoint trainings to explain the “hidden meanings” of tattoos, along with general articles about transnational gangs such as MS-13. DHS uses these general accounts to argue that common tattoos, like images of the Grim Reaper, spider webs or Catholic iconography, are hidden references to transnational gangs like MS-13 or the 18th Street gang.
Immigration judges tend to defer to the statements of DHS attorneys, even where there is a complete lack of independent evidence to substantiating the claim. Judges may use their broad discretionary authority to base a denial of bond on mere allegations of an individual’s dangerousness to society, without any underlying criminal conviction, charge, or even an arrest.
Attorneys have attacked the probative value of such evidence by pointing out that hundreds of thousands of individuals in the United States and across the world have tattoos and have no affiliation whatsoever with a criminal gang. A tattoo on a Central American immigrant is not probative of gang affiliation or the commission of a criminal offense or of anything other than the fact that a person likes a specific tattoo design. Immigration attorneys have also challenged the investigative rigor of general tattoo interpretation articles rather than the use of a qualified expert. Attorneys have made similar arguments against the use of Facebook pictures in bond hearings. DHS often submits Facebook pictures to argue that the immigrant appears with other alleged gang members, uses gang signs or wears gang-affiliated clothing, which may be certain colors or sports teams’ apparel. These photos, while indicative of the immigrant’s desire to be perceived as tough or cool by a social network of high school teenagers and other youth, are not probative of actual gang involvement.
DHS commonly alleges gang affiliation by submitting a DHS-created form, “Form 1- 213” as evidence in a bond hearing, and immigration judges routinely accept and admit the 1-213 into the record. This form frequently contains unsworn hearsay by a DHS official or police officer stating that the immigrant is a gang member or affiliate. Challenging the admissibility of a 1-213 can be difficult, 1-213s are presumptively reliable to prove an immigrant’s “alienage.” However, the case law does not support DHS’s frequent argument that 1-213s are inherently reliable as a general matter nonetheless; many immigration judges have been susceptible to this argument.
More recently, DHS has started to submit more detailed Homeland Security Investigations (HSI) memoranda and internal documents created by DHS officials to further substantiate gang allegations. Immigration attorneys have sometimes successfully argued that a 1-213 or an HSI memo should either be inadmissible or, if admitted, given very little weight in the exercise of discretion because of the lack of accuracy or neu- trality in the official who prepared the report.
Analogizing to criminal law precedent, immigration practitioners have argued that 1-213s and Homeland Security Investigation memos are in effect and purpose similar to criminal police reports, which a number of circuit courts have found are neither reliable nor neutral because they are created in an adversarial, investigatory context and therefore do not meet the “public records” exception to inadmissible hearsay evidence in the absence of testimony under oath by the agent that prepared them. Although unpublished, a recent decision of the Board of Immigration Appeals acknowledged the evidentiary pitfalls of 1- 213’s, holding that 1-213s must be attested by the official having legal custody of the [original] record or by an authorized deputy?
InImmigration practitioners have also successfully argued that the 1-213 or the HSI memo alleging their client’s gang affiliation should be given little weight as a matter of discretion, or be inadmissible altogether, where DHS refuses to make the preparer of the report or the source of the allegations available for testimony and cross-examination. Although the Sixth Amendment right to confront witnesses does not apply in these civil proceedings, both statute and case law in some federal circuit courts explicitly state that immigrant respondents have the right to cross-examine witnesses in certain situations.” DHS generally will not make the preparer of the 1-213 or HSI memo available for cross- examination. For this reason, immigration practitioners must move to subpoena or request that the court order a deposition of the preparer of these agency documents. As a practical matter immigration judges rarely grant such motions however, requesting a sub- poena highlights DHS’s refusal to make witnesses available for testimony and underscores the unreliability of these DRS administrative documents, thereby supporting an immigrant’s argument that they should not be admitted as evidence or given full weight, as well as preserving arguments for appeal.