By Laila L. Hlass
Last month, Education Secretary Betsy DeVos told Congress that local schools should have the freedom to decide whether to report undocumented students to immigration authorities. Although she has since stepped back her remarks, this sentiment is in line with President Trump’s pervasive attacks on immigrants. Trump has called immigrants rapists, gang members, and “animals.” Regarding migrant children, he said “they look so innocent. They’re not innocent.” Like DeVos, Trump’s high-ranking appointees have sounded much the same theme: Attorney General Sessions called unaccompanied minors “wolves in sheep’s clothing,” while ICE chief Thomas Homan asserted a “connection” between unaccompanied child migration and gang violence.
Anti-immigrant rhetoric works in tandem with an aggressive immigration enforcement regime to push children out of schools and into deportation proceedings. In The School to Deportation Pipeline, I describe how immigrant children are “increasingly finding themselves in the crosshairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime.”
A particularly troubling trend consists of the use of gang allegations—often based on false or misleading information—to impact detention and deportation decisions. Although no formal definition of gang or gang membership exists under immigration law, a single immigration agent, law enforcement officer, or school official may label an immigrant as gang-affiliated, based upon observations of the young person’s clothes, friends, family members, or even the area where they live. Once this allegation filters into immigration proceedings, it often has devastating immigration consequences, where the mere perception of criminality may effectively extinguish any defenses against deportation. A young person accused of gang-involvement is likely to be detained throughout the pendency of their immigration court proceedings. If immigration judges credit the allegations, as they often do, the young person will almost certainly be deported.
I saw this firsthand when I represented “José,” a high schooler who had been granted Special Immigrant Juvenile Status after being abandoned by his mother as a toddler. One day, a student told a school police officer that another student had heard from someone else that José was in a gang. After the school safety officer saw José near another student believed to be in a gang, the officer forwarded José’s information to a regional law enforcement center for inclusion in a gang database. Immigration and Customs Enforcement (ICE) then detained José on this basis. In the subsequent immigration proceedings, an ICE prosecutor submitted a boilerplate report alleging gang affiliation, and included Facebook photographs of José wearing blue (an asserted “gang” color), and a Chicago Bulls hat, which ICE claimed is “gang apparel.” The immigration judge relied on the school officer’s report and Facebook pictures to find José was a “gang associate,” and therefore undeserving of lawful permanent residence. After more than a year of living in an immigration jail, José was deported.
After observing more and more reports of cases like José’s, Rachel Prandini of the Immigrant Legal Resource Center and I conducted a national survey of immigration attorneys in late 2017 regarding their perceptions of gang allegations in immigration proceedings. According to survey respondents, gang allegations in immigration proceedings are on the rise. From coast to coast, attorneys have observed gang allegations raised by immigration officials across the Department of Homeland Security, often relying on no or flimsy evidence such as Facebook pictures showing young people wearing popular sports team logos or ubiquitous brands of clothing, like Michael Jordan or Nike Cortez sneakers. In addition to this reliance on flimsy gang allegations, immigration judges and officers are also declining to exercise discretion in cases involving young immigrants who were formerly involved with gangs, no matter how strong the evidence of rehabilitation or how minor the prior conduct.
In The School to Deportation Pipeline, I connect the new surge of gang allegations to the longer pattern of crimmigration’s development, serving as a means to preserve racial inequality. Gang allegations often rely on broad and subjective criteria, resulting in misidentification as well as racial profiling of youth of color. The confluence of criminal and immigration systems exacerbates the problem. On the front end, immigrant youth of color face over-policing, both by law enforcement, who may target certain neighborhoods, and by school police, who often criminalize typical student misconduct. In fact, according to a study, the presence of police in schools directly corresponds with a dramatic increase in criminal arrests of children for “disorderly conduct,” such as talking back to a teacher.
Lack of oversight over gang identification and databases compounds the problem on the back end. Even worse, children must defend against gang allegations in deportation proceedings without critical procedural safeguards, such as appointed counsel, while shouldering the same burden as adults to prove eligibility for any immigration relief. Immigration court guidance provides a paltry list of potential accommodations, such as allowing children to testify near a trusted adult and to bring a toy into the courtroom, and encouraging judges to allow for more extended breaks.
Broader reforms are needed to address the existing biases and lack of safeguards for children in immigration proceedings. Mere allegations of gang association should be excluded from immigration proceedings, as they are highly prejudicial, compound racial disparities, and lack reliability. Even without statutory, regulatory or administrative guidance prohibiting reliance on gang allegations, there are ways that federal and local officials can address bias against immigrant youth in immigration proceedings. The immigration agencies, for example, should require implicit bias education for all adjudicators, improve decision-making conditions (including by permitting adjudicators more time to consider cases), and better track decision-making, including demographic information about respondents, to uncover bias. Furthermore, adjudicators should consider youthfulness as a positive factor for discretionary decisions, including for bond hearings. Lastly, children in the school to deportation pipeline need lawyers at their side to prevent unjust deportation. If federal officials will not provide the assistance of counsel to those who cannot afford it, state and local governments should make every effort to do so.
Laila L. Hlass is a professor of practice at Tulane University Law School, where she teaches immigration law, and is the author of “The School to Deportation Pipeline,” published by Georgia State University Law Review.