Coalition Letter on Interim ICE Guidance

April 1, 2021

The Honorable Alejandro Mayorkas

Office of the Secretary

U.S. Department of Homeland Security

Washington, D.C. 20528

Dear Secretary Mayorkas,

As criminal justice and immigration advocates, we are writing to express our serious concerns with ICE’s prioritization of those labelled as gang-involved for detention and removal in the February 18, 2021 interim United States Immigration and Customs Enforcement (“ICE”) Civil Immigration Enforcement and Removal Priorities memorandum (“February 18 Memorandum”) issued by the Department of Homeland Security (“DHS”). In addition to relying on the overbroad and excessively punitive category of “aggravated felonies,” we take issue with what these priorities convey about the administration’s commitment to racial equity and ending mass incarceration.

We strongly urge that you move away from further integrating the criminal and immigration legal systems and from false narratives that perpetuate racism and hate. In order for this Administration to keep its commitment to reversing a dangerously punitive and discriminatory immigration system, it must withdraw any reliance on gang affiliations in DHS’s final enforcement priorities.

The February 18 Memorandum states that ICE will focus on people it has deemed a “public safety threat,” with these troubling criteria:

• Anyone who has a conviction where being a gang member or doing something for a gang is part of the crime;
• Anyone who is over 16 and who intentionally participated in a gang.

The February 18 Memorandum’s prioritization of persons labelled as gang involved is problematic because law enforcement’s tactic of gang labelling is based on arbitrary factors that are highly vulnerable to discriminatory enforcement. Black, Latinx, and immigrant persons are grossly overrepresented among those labelled gang-affiliated by law enforcement. Criteria for applying such labels are opaque, arbitrary and inflected with racially-biased criteria. The propensity for discriminatory enforcement is particularly alarming in light of increasing evidence of white supremacy ideologies within law enforcement, including gang policing units.

By continuing to target immigrants for arrest and deportation under this label, ICE is perpetuating this racial bias that instigated the initial labeling, since often the sources of gang identification are from interagency cooperation and data sharing that occurs among various governmental agencies. For example, in 2017, ICE’s execution of Operation Matador resulted in large sweeps of immigrant youth labeled as gang-involved based on flimsy evidence that the youth were not given a sufficient opportunity to rebut, resulting not only in unnecessary and often irrevocable detentions and deportation but also in re-traumatization of youth who may have been refugees or asylum seekers. This practice was successfully challenged in the Saravia class action lawsuit, which sought the release of children taken from their homes and detained based on gang allegations. The federal court ordered hearings for detained youth in these circumstances, leading to the release of over 30 of the 35 young people who were granted hearings. The administration decision to prioritize “intentional participation in a gang” wholly ignores the lessons from DHS’s abuse of power during Operation Matador, where ICE officers admitted to pretextually using gang allegations as a means to incarcerate and target youth, and pursue an anti-immigrant agenda.

Gang databases: overly broad and racially biased

The criteria for gang labelling are notoriously vague and thus ripe for arbitrary and discriminatory application, as evidenced by the well-documented problems that have arisen around the country with local gang databases.

These problems include but are not limited to, lack of oversight, self-fulfilling and arbitrary use of factors to enter persons into a database, issues with abuse, and the discriminatory ideologies gang-policing units hold. For example, gang-related colors are commonly used by law enforcement as an identifying factor of gang-involvement. The NYPD’s gang database reportedly includes nearly every color as a potential gang color — including black, gold, yellow, red, purple, green, blue, white, brown, khaki, gray, orange, and lime green — highlighting the arbitrariness of such factors and their vulnerability to discriminatory enforcement and abuse.

Errors in gang databases have also been well documented. In Chicago, an immigrant man was taken into custody by ICE based on faulty allegations that he was in a gang, in large part because he was included in the Chicago Police Department’s gang database. Information sharing with immigration officials is a widespread concern. According to a report from Chicago’s Inspector General, ICE has accessed the database over 32,000 times. Gang databases in Chicago have been subject to intense scrutiny by local activists and residents, who have called for its abolition. A state audit showed that California’s gang database, CalGang, was full of numerous inaccuracies, including the inclusion of infants as designated gang members. Recently, California’s attorney general revoked access to data that the Los Angeles Police Department entered in a state gang database after a major scandal revealed its officers were fabricating evidence in order to add people to the database.

New York City’s gang database has been a particular source of controversy, where thousands of individuals, including hundreds of children, have been added since 2014. More than 99% of those in the database are Black, Hispanic or non-white, and there is no requirement for a criminal conviction to be included. Gang labeling often leads to large scale, militarized gang takedowns, like the Bronx120 takedown in 2016 — the largest gang sweep in New York City history. A 2019 CUNY School of Law report noted most Bronx120 defendants weren’t accused of violent crimes and about half weren’t even accused of being gang members.

Gang prosecutions and “convictions”

The linking of DHS priorities to people with criminal convictions does not alleviate the concerns around law enforcement gang labelling practices. A conviction involving a gang allegation is not convincing evidence of gang membership. In the infamous Bronx 120 gang takedown, less than half of the defendants were even alleged to be gang members. Gang allegations proffered based on the sorts of dubious evidence previously described are nearly impossible to challenge in pretrial detention and immigration court, can lead people to accept guilty pleas in exchange for leniency, and lead jurors to convict on insufficient evidence because of bias and fear. A prime example is the increased use of state and federal conspiracy charges, including Racketeer Influenced and Corrupt Organizations (RICO) laws, which can result in inaccurate pleas and convictions because potential sentences are so harsh.

Many are charged through what appears to be guilt by association presumptions (i.e. who they know, where they lived, and what gangs they were assumed to belong to) via complex laws originally designed to take down the Mafia. Again, in the Bronx120 takedown, the majority of convictions against defendants in that case, who were charged under RICO, were achieved through plea deals though only half were even alleged to be gang-involved. Thus, prioritizing people with “gang-related” conviction may well target non-gang members and individuals who plead, not because of whether or not they are actually guilty, but because of the coercive force of RICO and similar charges.

While ICE’s interim enforcement memo only applies for 90 days, the guidance is an alarming indication of where the Administration may be headed. It ignores longstanding concerns raised by communities around the country about the harms, abuses, and dangers of gang labelling and databases. In cities with “sanctuary” protections, gang labelling has created a trapdoor for deportation. DHS’s memo seems to not only overlook that reality but embrace it.

Citing a need to combat gangs, the prior Administration of Donald Trump threatened mass deportations, inciting panic and fear in immigrant communities. The Biden Administration’s validation of gang labeling echoes these same fear-mongering justifications. Any permanent policy must make a clean break from determinations with such clear discriminatory and abusive impacts.

Sincerely,

The GANGS Coalition

Advocating Opportunity

Appellate Advocates

Asian Americans Advancing Justice | AAJC

Asian Americans Advancing Justice — Asian Law Caucus

Asian Americans Advancing Justice — Chicago

Asylum Seeker Advocacy Project (ASAP)

Black Alliance for Just Immigration

Black and Brown United In Action

Brennan Center for Justice at NYU School of Law

The Bronx Defenders

Brooklyn Community Bail Fund

Brooklyn Defender Services

Capital Area Immigrants’ Rights Coalition

CASA

Catholic Legal Immigration Network, Inc.

Center for Constitutional Rights

Center for Popular Democracy

Church World Service

Connecticut Shoreline Indivisible

Detention Watch Network

DRUM- Desis Rising Up & Moving

Enlace — Chicago

Families For Freedom

First Focus on Children

The Fortune Society

Freedom For Immigrants

Freedom Network USA

H-CAN Immigration & Refugees Action Group

Homies Unidos

Human Rights Initiative of North Texas

Human Rights Watch

Immigrant and Non-Citizen Rights Clinic, CUNY School of Law

Immigrant ARC

Immigrant Legal Resource Center (ILRC)

Immigrant Defense Project

The Jewish Council on Urban Affairs

Justice Strategies

La Resistencia

LatinoJustice PRLDEF

The Legal Aid Society

National Immigrant Justice Center

National Immigration Law Center

National Immigration Project (NIPNLG)

National Network for Immigrant & Refugee Rights

Neighborhood Defender Service of Harlem

Network in Solidarity with the People of Guatemala

New Sanctuary Coalition

New York Civil Liberties Union

New York County Defender Services

New York Immigration Coalition

NYSYLC

Organized Communities Against Deportations

The Policing & Social Justice Project at Brooklyn College

Public Defender Coalition for Immigrant Justice

Queens Neighborhoods United/Queens Barrios Unidos

Release Aging People in Prison

Restore The 4th

Sanctuary DMV

StoptheDrugWar.org

Surveillance Technology Oversight Project

Taos Immigrant Allies

UnLocal

Wind of the Spirit Immigrant Resource Center

The Workers Circle

Young Center for Immigrant Children’s Rights

Prof. Alex Vitale, Brooklyn College

Prof. Babe Howell, CUNY School of Law

Prof. David Brotherton, John Jay College

Rashida Richardson, Visiting Scholar, Rutgers Law School