Abstract
Excerpted From: Mary Holper, Gang Accusations: The Beast That Burdens Noncitizens, 89 Brooklyn Law Review 119 (Fall, 2023) (368 Footnotes) (Full Document)
A teenager from El Salvador attends a high school that is populated mostly by Latine youth. He finds his friends in a group of boys. He gets into a scuffle with another boy. Little does he know, with each of these interactions, he has been accruing “points” in a database that tracks gang membership and affiliation. The friendships earn him two points for each interaction, as his friends are “known” MS-13 gang members (“known” to the police, who maintain the database). The scuffle itself earns him eight points, as his aggressor is a “known” member of the 18th Street Gang, which is a rival to the MS-13. At ten points, he has earned himself the label of “gang associate.”
This teenager lives in Boston, where the stated purpose behind the creation of this gang database was not enforcement, but prevention and protection. One might agree with the creation of such a database, given this benevolent purpose. Yet, in other neighborhoods of Boston, teenagers in majority white schools do not have their relationships under a police microscope for the purpose of tagging them with membership in an organized group of criminals. When one questions how so many urban police forces, including Boston, came to “need” gang databases, the backstory inevitably intersects with shameful practices in US history, such as the creation of urban neighborhoods of concentrated poverty, where police act as social workers while they surveil poor communities of color.
The story of gang databases entails more than the creation and maintenance of a list of at-risk youth in order to either protect them from retaliation by other youth or to surveil them as they go about their lives. The gang database has also become an immigration enforcement tool, creating what Laila Hlass calls a “'school to deportation pipeline.”’ For example, what if the teenager described above now faces immigration detention and deportation? The printout from that gang database becomes the centerpiece of evidence supporting the government's argument that he is a danger to the community and thus undeserving of release during his removal proceedings. At his final removal hearing, it also plays a key role in the government's argument against asylum. Namely, the government is able to argue he is not credible about any past persecution because he denies gang involvement, which is inconsistent with the gang database conclusions. Even if credible, the government argues he does not deserve asylum in the exercise of discretion because he is affiliated with a dangerous street gang.
The racial injustices inherent in the creation of the gang database are exacerbated in the immigration context. Distinct aspects of immigration procedure have created a system in which gang allegations ensure near-certain detention and deportation. The burden allocation in bond hearings, which requires an immigration detainee to disprove dangerousness, creates a default presumption of detention, which cannot be overcome in the face of uncertain evidence that alleges gang affiliation. The inapplicability of the formal rules of evidence in immigration proceedings allows judges to make decisions based on unreliable evidence that contains multiple levels of hearsay, a common feature of gang evidence. The prioritization of administrative efficiency in making decisions regarding who is a danger, whether a person is credible, or whether a person is deserving of discretion, leads immigration judges to rely on shortcuts, such as evidence provided by other law enforcement agencies. The massive amount of unchecked discretion allows implicit biases to thrive when judges must make quick decisions and are presented with evidence that confirms these biases--that a young man of color is a dangerous gang member. The asylum rules that create a presumption of noncredibility for asylum seekers--and give an outsized role to any inconsistency, regardless of whether it is material to the claim--allow a noncitizen's denial of gang membership to infect his credibility when he discusses past persecution or torture. The lack of court-appointed counsel is an additional, ever-present problem, since the various legal arguments that challenge these aspects of the immigration system require an advocate versed in the complexities of immigration law, as well as its overlap with other areas of law. This problem is exacerbated given that the noncitizen needs counsel at all phases of the case, and that counsel must be competent to advocate before both the agency and federal courts. Even if the noncitizen has competent counsel, being detained while one fights meritorious legal arguments acts as a deterrent to raising meritorious legal arguments challenging the gang evidence.
This article is the first to examine the issue of gang evidence through the lens of the law's use of presumptions and the corresponding burdens of proof at play in immigration proceedings. In immigration law, most burdens of proof fall on noncitizens. These burden allocations allow adjudicators to readily accept the harmful presumption contained in the gang evidence--that urban youth of color are criminals and likely to engage in violent crime associated with gangs. This article brings together previous literature on immigration and criminal justice as it relates to gang evidence in order to explain how racist assumptions led to the creation of a gang database. It proposes that there should be an evidentiary presumption that gang evidence is not reliable in order to specifically instruct a judge to reject the existing societal presumption about urban youth of color and criminality. In this way, this article tracks common interests of critical race theory by explaining how US society has subordinated people of color in the creation of gang databases and seeks not only to understand how, but also to change, this bond between law and racial power.
Others have proposed that the gang evidence be completely inadmissible in immigration proceedings. This article takes a more practical approach that works from within the existing immigration procedure, where the formal rules of evidence do not apply--a feature that helps asylum seekers, such as our hypothetical teenager, to present corroborating statements in support of his claims. Evidentiary presumptions and burden shifting are a common features of immigration law, whereas complete inadmissibility of evidence is unusual. In addition, an evidentiary presumption requires analysis of the evidence by an immigration judge, thus giving courts a standard under which to review a judge's consideration of gang evidence. Using the First Circuit Court of Appeal's 2022 decision in Ortiz v. Garland as an example, this article proposes a presumption of unreliability of gang evidence to address the current issues with gang accusations in immigration court. The Ortiz case illustrates that evidentiary presumptions can be shifted broadly, rather than playing out on a case-by-case basis.
Part I explains the justifications for why gang databases exist, using the creation of Boston's Gang Database as an example. Following the lead of critical race theorists, this part asks whether there is a counter-account of the social reality in Boston that led to the creation of this database. Part I then discusses the forces that gave rise to the database's creation, including neighborhood segregation and subsequent diminishing social services, the rise of police acting as social workers and their surveillance powers, and the labeling of minorities as dangerous people who the government can then detain and deport. Part I also explains how local anti-gang efforts became part of a national immigration enforcement agenda. Part II discusses burdens of proof in the law, why burdens exist, and how burdens operate in immigration cases to validate harmful presumptions that a young man of color is a gang member, since nearly every burden lies with the noncitizen in immigration court. Finally, Part III proposes the creation of an evidentiary burden that gang evidence is unreliable in immigration cases and explains how that burden can counteract the harmful presumptions contained in the gang evidence. Part III also describes other areas in which the law corrects for biases, examines the First Circuit's Ortiz case as a roadmap for an evidentiary presumption shift, discusses other challenges to immigration law presumptions, and responds to possible critiques.
[. . .]
The racial injustices that gave rise to the creation of gang databases are amplified when gang evidence enters the immigration context. Gang evidence is a powerful weapon that the government can easily wield to detain and deport noncitizens. This article has examined gang evidence as used in the immigration context by seeking to explain the context in which such evidence came into being, and how that has led to accusations of gang affiliation in order to capitalize on a negative presumption of dangerousness, particularly for young men of color. While the creation and maintenance of gang databases is a large systemic problem that is itself seeing calls for abolishing such databases, this article's focus is on one area of law where the consequences of such databases are felt by those who are relatively powerless to resist the harmful presumptions created by them. The proposal offered is a presumption that gang evidence is unreliable when an immigration adjudicator is confronted with such evidence. This burden shift presents a means of correcting a historical wrong: the creation of a gang database that consists primarily of young men of color.
Associate Clinical Professor; Associate Dean for Experiential Learning, Boston College Law School.
