The “M” and the “S” Carlos had etched in his arms with a homemade tattoo gun when he was a teenager in Guatemala City were part of a different life. During his adolescence in the mid-1990s, Carlos, who asked that his real name not be used, hung out with deportees from Los Angeles who had been subsumed into Southern California’s gang culture and brought 18th Street and Mara Salvatrucha from Los Angeles to Central America. Carlos and his brother joined the Normandie Locos clique of Mara Salvatrucha, also known in the United States as MS-13, and got tattoos marking their membership in the gang. They joined because it made them popular with girls, Carlos said, and most of his childhood friends were part of the clique as well.
Guatemalan law enforcement took a hard-edged approach in the late 1990s, and Carlos was shot in three separate incidents by police officers in Guatemala City. His brother was killed by police in September 2000, according to a sworn declaration Carlos later submitted to the Los Angeles city attorney’s office.
After his brother’s death, Carlos said, he was tortured by Guatemalan police. “The police put ‘the hood’ on me, which meant that they put a tire tube over my face until I was about to pass out,” he wrote in the declaration. “They tied my hands and feet together and beat me.”
According to Carlos’s account, after his release, he decided to flee to the United States. He spent a month traveling across Mexico and arrived in California in March 2001, with no visa. For two years, he worked as a day laborer, living on the streets, in shelters, and in parks in the Westlake area of Los Angeles, where Guatemalans and Salvadorans have flocked since the 1980s.
During his first few years there, Carlos said he had no contact with the Los Angeles Police Department, an assertion supported by law enforcement records. That changed on April 30, 2004, when he was stopped by officers from the Wilshire station narcotics unit. Police took notice of the tattoos on his arms and asked him if he was a gang member. Carlos said he told the officers that he had been involved with MS-13 in Guatemala but had nothing to do with them in Los Angeles.
“Admitted membership to MS-Normandie for nine months with a moniker of Moreno,” reads the corresponding entry in Carlos’s file in CalGang, a statewide database of suspected gang members. Officers took photos of his face and tattoos and served him with a copy of the gang injunction, a highly controversial “nuisance abatement” program common in California and other states that restricts an individual’s ability to be in certain areas or associate with certain people deemed to be gang-involved.
Later that same night, Carlos was spotted on the street after 10 p.m. by two police officers, at least one of whom was among the officers who had stopped him earlier. They arrested him for violating a curfew provision of the MS-13 injunction. Over the next year and a half, Carlos was arrested two more times for violating the gang injunction by being around other documented gang members, although he claims the men he was accused of associating with had been detained separately and were completely unknown to him.
The third time he was arrested, in August 2005, Carlos pleaded no contest to a misdemeanor, spent 30 days in jail, and was placed on probation. After his release, he returned to work and completed his probation. However, the gang unit continued to stop Carlos, searching him roughly 20 times, according to his declaration. He was never re-arrested.
In March 2011, Carlos was on his way to the gym when he was stopped by two LAPD gang officers. “They told me, ‘These men want to talk to you,’” recalled Carlos, who said the officers were accompanied by two men in plainclothes. The new faces, agents with the Homeland Security Investigations office within Immigrations and Customs Enforcement, were conducting a joint gang enforcement operation with the LAPD. “They asked me if I had any legal status, and I said I did not want to answer without a lawyer,” Carlos claimed in his declaration.
When ICE agents interviewed Carlos, they repeatedly asked him when and why he joined MS-13. “I explained again that I was no longer a gang member and had never been one in the United States,” Carlos stated in his declaration.
After the interview, Carlos was transferred to the now-shuttered Mira Loma Detention Center. At this point, he was facing deportation back to Guatemala, which he had fled a decade earlier.
Carlos’s history is no exception. Over a decade of gang enforcement operations by Immigration and Customs Enforcement has resulted in more than 40,000 “gang-related” arrests and 8,000 firearms seized, according to the agency. By lumping hangers-on, friends, family members, and other people who know documented gang members as “associates” — a lesser category of classification that signifies some contact or knowledge of gang activity — ICE inflates the number of gang-related individuals in its arrests.
Sean Garcia-Leys, a law student at UC Irvine Law School’s Immigrant Rights Clinic, has represented undocumented immigrants charged with immigration violations at the Adelanto Detention Facility near San Bernardino, California. “The vast majority of people at bond hearings are people representing themselves, who have no idea that the Constitution’s confrontation clause means, ‘You can’t say that about me,’” Garcia-Leys said. “That’s not something that’s going to come out of someone who’s representing themselves at immigration court.”
Federal law enforcement relies heavily on local and state agencies for intelligence on gang members, according to Claude Arnold, a former deputy assistant director of operations for ICE’s Homeland Security Investigations division.
As a young immigration officer fresh out of college in Phoenix during the 1990s, Arnold witnessed firsthand how the Phoenix Police Department maintained an electronic repository of gang information complete with nicknames and photographs optimized for facial recognition. “The keys to gang policing are debriefing the gang members in the street, debriefing them after arrests, and gathering intelligence to determine the complexity of criminal involvement,” Arnold said. “In order to be effective, you have to do bottom-up enforcement. You’re nowhere if you’re not collecting raw intelligence from gang members on the street, and local gang officers do that more than anyone.”
In the late 1990s, law enforcement noticed a migration of gang members and activity from Chicago and Los Angeles, traditional gang areas, to other regions in the Midwest. “When LA cracked down and California passed a three-strikes law, we started seeing LA gangbangers pop up in Phoenix,” Arnold said. Using the example of Nebraska, Arnold described how “hardcore 18th Street” gang members from Los Angeles were turning up in Omaha.
During his time with ICE, Arnold designed Operation Community Shield, a gang enforcement program launched in 2005. Undocumented gang members could be deported even if they had no criminal history, and if they returned to the U.S., they would be charged with a felony. “You have to apply the scorched earth methodology to gang enforcement — really zero tolerance,” Arnold said.
As part of Operation Community Shield, ICE adopted one of the anti-gang strategies pioneered in California and implemented a nationwide gang database. Known as ICEGangs, the immigration database contains information on an unknown number of “suspected and/or confirmed gang members.”
Immigration lawyers and advocates contend that being classified as a gang member in immigration proceedings directly impacts a defendant’s ability to plead his or her case. Homeland Security attorneys often characterize gang members as threats to public safety, placing their I-213 forms — the equivalent of a charging document in immigration court — in color-coded folders to connote the risk, and ask judges to withhold bond. Gang involvement is also one of the criteria used to deny appeals for stay of deportation through Deferred Action for Childhood Arrivals, a federal process that allows undocumented immigrants to remain in the United States.
The consequences do not stop at the border: Carlos’s lawyer, Pinheiro, says ICE shares information on gang-affiliated deportees with authorities in Central America or Mexico. There, deportees “face an alarming likelihood of extra-judicial murder in their home country” from law enforcement or feuding gangs, according to a report by UC Irvine’s School of Law.
In California, the state’s gang database has come under fire in recent years over claims of inaccuracies, disproportionately documenting young men of color as gang-involved, and not providing any way for most to verify or challenge gang classification. In 2013, the state legislature passed a law that provided juveniles with the right to be notified of and challenge their inclusion in CalGang. A similar effort for adults is currently making its way through the state capitol in Sacramento.
Under rules laid out by the Obama administration, which are intended to allow some undocumented residents to remain in the U.S., individuals listed as gang members are a high priority for deportation. Gang classification from either the ICEGangs or CalGang database is used by government attorneys during hearings to request the undocumented detainees not be granted bond, since they present threats to public safety. At bond hearings in immigration court, detainees appear before a magistrate judge and do not have the right to appointed counsel.
Garcia-Leys, of the UC Irvine Immigrant Rights Clinic, experienced this firsthand. “I was representing one individual in his hearing who had been on a gang injunction and had already had a bond hearing and was denied bond, partly on the basis of his gang membership,” he said.
His client, who was from Oxnard, California, had been included in the Colonia Chiques/Southside Chiques gang injunction. Garcia-Leys then got a copy of his client’s I-213, which is filled out by immigration officials when an alien is detained. “So I took a look at it, and in capital letters, it said that my client was a gang member,” he said.
Garcia-Leys and two UC Irvine law professors researched the use of gang classification in immigration hearings and discovered that without supporting evidence, the information on his client’s I-213 form was largely disregarded by the court because his client couldn’t review and challenge the facts supporting that classification. Garcia-Leys successfully won bond for his client. (The bond didn’t ultimately guarantee protection; when the client couldn’t raise bond, he was deported.) But Garcia-Leys and his colleagues wanted to find out how the gang classification got to court in the first place. “Obviously the DHS attorney had done no research, she just had this printout that said this client was a gang member. So how did that happen?”
Garcia-Leys says his client, much like Carlos, was no longer a gang member. “No one had any idea how or why DHS was alleging he was a gang member,” he said.
Immigration lawyers saw this situation play out during innumerable other cases.
ICE did not respond to specific questions or Freedom of Information Act requests for the number of people documented in ICEGangs. However, ICE press releases show the agency obfuscates the number of genuine gang members arrested in its raids by lumping together gang members and “associates.” (ICE says that 2,802 individuals deported in 2014 were classified as suspected or confirmed gang members; in 2015, that number was 1,040.)
During Project Shadowfire, a five-week gang sweep that ended in March 2016 and resulted in 1,133 arrests across the United States, “more than 900 transnational criminal gang members and others associated with transnational criminal activity” were arrested, according to ICE. During another gang sweep that ended in March 2015, called Project Wildfire, 976 “gang members and associates” were arrested by ICE agents out of 1,207 total arrests.
For those representing undocumented immigrants, like Sean Garcia-Leys, these numbers reflect an overreach. In mid-2016, Garcia-Leys and his fellow students summed up their findings in a 30-page policy report that includes the stories of four Latinos who were represented by the UC Irvine Immigrant Rights Clinic while they grappled with deportation or applying for deferred action amid gang allegations. The report recommended the creation of notification and independent appeals processes for gang documentation.
“We realized at this point, this is probably happening all the time to people who don’t have attorneys,” Garcia-Leys said.
While in immigration detention, Carlos was confronted with evidence that he and his attorney claim was inaccurate; they argued it portrayed him as a greater threat to public safety than his criminal history reflected. ICE accused Carlos of being a gang leader for MS-13 — of which there is no documentation in Carlos’s criminal records or CalGang file, which he shared with The Intercept. He was assigned to the high-security section of the Mira Loma Detention Center, where he served four months.
Pinheiro believes Carlos’s case is a prime example of what happens when unverified, unchallengeable gang classifications by local law enforcement are shared with immigration authorities. “Once that street terrorism code is on the arrest, it triggers attention by ICE,” Pinheiro said.
She has had clients with nothing but a juvenile vandalism arrest for graffiti — but with gang allegations on their record — picked up and placed in deportation proceedings years after the fact.
Carlos argued he feared grievous harm or death if he returned to Guatemala, where he said two of his cousins, along with his brother, had been killed by police. While in immigration custody at Mira Loma, Carlos said an officer told him that if he didn’t cooperate as a jailhouse informant, he would be deported and killed by police in Guatemala, like another recent deportee. The immigration agent, Carlos claimed in his declaration, “said he would do the same with me, and that I ‘would not survive’ if I returned to Guatemala.”
Pinheiro was only able to get Carlos’s criminal history through the Los Angeles Alternate Public Defender’s office. She described the lack of discovery proceedings in immigration court as macabre.
ICE relies “on the fact that most of these people won’t ever have access to counsel” and therefore includes inaccurate or overstated evidence, Pinheiro said.
Pinheiro was able to prove inconsistencies between Carlos’s criminal and immigration records (local police listed his moniker as “Moreno,” while ICE had recorded yet a different alias) and demonstrate he had reason to fear for his life in Guatemala. Carlos was awarded relief on his removal case under the convention against torture.
“The fact that they never found anything to charge him with speaks to the fact that he isn’t a gang member,” Pinheiro said.
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