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.
The GANGS Coalition
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
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
Human Rights Initiative of North Texas
Human Rights Watch
Immigrant and Non-Citizen Rights Clinic, CUNY School of Law
Immigrant Legal Resource Center (ILRC)
Immigrant Defense Project
The Jewish Council on Urban Affairs
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
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
Surveillance Technology Oversight Project
Taos Immigrant Allies
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
 Memorandum from Tae D. Johnson, Acting Dir., U.S. Immigration and Customs Enforcement, to All ICE Employees, Interim Guidance: Civil Immigration Enforcement and Removal Priorities (Feb. 18, 2021), https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf
 “Aggravated felony” is a term of art found in the Immigration and Nationality Act that includes offenses that need not be aggravated nor felonies. See American Immigration Council, Aggravated Felonies: An Overview (Mar. 2021), https://www.americanimmigrationcouncil.org/sites/default/files/research/aggravated_felonies_an_overview_0.pdf.
 President Biden has cited racial equity and ending mass incarceration as priorities on multiple occasions. See, e.g., Fact Sheet: President Biden to Take Action to Advance Racial Equity and Support Underserved Communities, The White House (Jan. 26, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/26/fact-sheet-president-biden-to-take-action-to-advance-racial-equity-and-support-underserved-communities/; The Biden Plan for Securing Our Values as a Nation of Immigrants, Joe Biden for President: Official Campaign Website, https://joebiden.com/immigration/; Joe Biden’s Criminal Justice Policy, Joe Biden for President: Official Campaign Website, https://joebiden.com/justice/.
The Trump campaign and Administration’s nativist and racist rhetoric were used to link nonwhite immigrants to violence and specifically gang violence, see, e.g., Trump: Immigrant Gangs “Animals, not People,” BBC News (May 17, 2018), https://www.bbc.com/news/av/world-us-canada-44148697
 See Michael German, Hidden in Plain Sight: Racism, White Supremacy, and Far-Right Militancy in Law Enforcement, Brennan Ctr. for Justice, (Aug. 27, 2021), https://www.brennancenter.org/our-work/research-reports/hidden-plain-sight-racism-white-supremacy-and-far-right-militancy-law; see also Ctr. for Juvenile Law and Policy, Loyola Law Sch., 50 Years of Deputy Gangs in the Los Angeles County Sheriff’s Department (Jan. 2021), https://lmu.app.box.com/s/ho3rp9qdbmn9aip8fy8dmmukjjgw5yyc.
 Sarah Gonzalez, Held for Months, Teens Accused of MS-13 Affiliation Start Returning to Long Island, WNYC News (Nov. 29, 2017), https://www.wnyc.org/story/teens-accused-ms-13-affiliation-start-returning-long-island; https://www.wnyc.org/story/teens-in-us-illegally-say-theyre-falsely-accused-of-being-in-a-gang.
 See The New York Immigration Coal. et al., Swept Up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers (May 2018), https://www.law.cuny.edu/wp-content/uploads/page-assets/academics/clinics/immigration/SweptUp_Report_Final-1.pdf; The New York Civil Liberties Union and The New York Immigration Coal., Stuck With Suspicion: How Vague Gang Allegations Impact Relief & Bond for Immigrant New Yorkers (2019), https://thenyic.pi.bypronto.com/2/wp-content/uploads/sites/2/2019/02/020819-NYCLU-NYIC-Report.pdf; Hannah Dreier, He Drew His School Mascot–and ICE Labeled Him a Gang Member, ProPublica (Dec. 27, 2018), https://features.propublica.org/ms-13-immigrant-students/huntington-school-deportations-ice-honduras/.
 Saravia v. Sessions, 905 F.3d 1137 (9th Cir. 2018).
 Saravia v. Sessions (Due Process for Immigrant Youth), ACLU N. California, https://www.aclunc.org/our-work/legal-docket/saravia-v-sessions-due-process-immigrant-youth#:~:text=Over%2035%20children%20were%20granted,Ninth%20Circuit%20in%20October%202018.
 See The New York Immigration Coal, supra note 6, at 20.
 See, e.g., Letter: Groups Urge NYPD Inspector General to Audit the NYPD “Gang Database,” Human Rights Watch (Sep. 22, 2020), https://www.hrw.org/news/2020/09/22/groups-urge-nypd-inspector-general-audit-nypd-gang-database; Stefanie Dazio, Police Can’t Access LAPD Gang Database Records after Scandal, Associated Press (Jul. 14, 2020), https://www.washingtonpost.com/national/police-cant-access-lapd-gang-database-records-after-scandal/2020/07/14/d2890e98-c609-11ea-a825-8722004e4150_story.html; Chicago Inspector General's Review of CPD Gang Database
 See City of Chicago Inspector Gen., Review of the Chicago Police Department’s “Gang Database,” (Apr. 11, 2019), https://igchicago.org/wp-content/uploads/2019/04/OIG-CPD-Gang-Database-Review.pdf; Ctr. for Juvenile Law and Policy, Loyola Law Sch, supra note 5.
 See Alice Speri, New York Gang Database Expanded By 70 Percent Under Mayor Bill De Blasio, The Intercept (Jun. 11, 2018), https://theintercept.com/2018/06/11/new-york-gang-database-expanded-by-70-percent-under-mayor-bill-de-blasio/.
 See Nereida Moreno, Immigrant Released from Detention after Being Wrongly Listed as Gang Member, Chi. Trib. (Jan. 25, 2018), https://www.chicagotribune.com/news/ct-met-immigrant-released-jail-0126-story.html.
 See Maria Ines Zamudio, Federal Immigration Agencies Used Chicago Gang Database Thousands Of Times, WBEZ (Apr. 12, 2019), https://www.npr.org/local/309/2019/04/12/712788497/federal-immigration-agencies-used-chicago-gang-database-thousands-of-times.
 See Fran Spielman, Critics Want Chicago Police to Abolish – Not Just Reform – Gang Database, Chi. Sun-Times (Feb. 27, 2020), https://chicago.suntimes.com/city-hall/2020/2/27/21156283/gang-database-chicago-police-protest-chicago-city-council.
 Richard Winton, California Gang Database Plagued with Errors, Unsubstantiated Entries, State Auditor Finds, L.A. Times (Aug. 11, 2016), https://www.latimes.com/local/lanow/la-me-ln-calgangs-audit-20160811-snap-story.html.
 See Douglas S. Wood, California Pulls Access to LAPD Gang Data in Database after Prosecutors Say Officers Falsified Records, CNN (Jul. 14, 2020), https://www.cnn.com/2020/07/14/us/lapd-gang-database-california/index.html. See also Ctr. for Juvenile Law and Policy, Loyola Law Sch, supra note 5.
 Nick Pinto, NYPD Added Nearly 2,500 New People to Its Gang Database in the Last Year, The Intercept (Jun. 28, 2019), https://theintercept.com/2019/06/28/nypd-gang-database-additions/.
 NYPD’s Gang Takedown Efforts: Hearing Before the Comm. on Pub. Safety of the N.Y. City Council, 2018 Leg., 2018-2021 Sess. at 25 (N.Y.C 2018) (statement of Dermot Shea, NYPD Chief of Detectives).
 See id.
 See K. Babe Howell, Fear Itself: The Impact of Allegations of Gang Affiliation on Pre-Trial Detention, 23 St. Thomas L. Rev. 620 (Summer 2011). See also The New York Civil Liberties Union and The New York Immigration Coal., supra note 6.
 Mitchell Eisen, Brenna Dotson & Gregory Dohi, Probative or Prejudicial: Can Gang Evidence Trump Reasonable Doubt?, 62 U.C.L.A. L. Rev. Disc. 2 (2014). In a mock trial designed to lead to acquittal gang allegations in opening and closing tripled the conviction rate. One of the authors, Dohi, is a California judge.
 See K. Babe Howell and Priscilla Bustamante, supra note 22.