Immigrant Rights Clinic

MislabeledAllegationsofGangMembershipandTheirImmigrationConsequences

MislabeledAllegationsofGangMembershipandTheirImmigrationConsequences

Authors:SeanGarcia-Leys,MeiganThompson,ChristynRichardsonEditors:SameerAsharandAnnieLaiPhotoscourtesyofSalvador“Pocho”SanchezandHomeboyIndustriesInfographicsbyOswaldoFariasandAbrahamMedinaofSantaAnaBoysandMenofColorThankstothegeneroushelpandsupportofAmeliaAlvarez,FawnBekham,CaitlinSanderson,ErikaPinheiro,JoshuaGreen,AlexisNavaTeodoro,GabbyHernandez,CarolynTorres,AnaKarenRosales,KarenHuerta,andPatriciaTiemposUCISchoolofLawImmigrantRightsClinichttp://www.law.uci.edu/academics/real-life-learning/clinics/immigrant-rights.htmlP.O.Box5479Irvine,CA92616-5479Phone:(949)824-9646Fax:(949)824-2747Administrator:DebiGloriadgloria@law.uci.eduApril2016

TABLEOFCONTENTS

I.INTRODUCTION..............................................................................................................1II.GANGALLEGATIONS....................................................................................................5

SOURCESOFGANGALLEGATIONS..................................................................5RECORDINGOFGANGALLEGATIONS............................................................8

III.IMMIGRATIONHARMSRESULTINGFROMGANGALLEGATIONS..........12

HARMSINAPPLICATIONSFORPROSECUTORIALDISCRETION......12EFFECTSOFGANGALLEGATIONSONIMMIGRATIONDETENTION...........................................................................14

IV.POLICYRECOMMENDATIONS..............................................................................20V.ENDNOTES....................................................................................................................21

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INTRODUCTION

Across California, law enforcement officers

routinely document people as gang membersbased not only on evidence presented in court,but based on the subjective beliefs of officersinteractingwithpeopleinthefield.1 California’sstatewidegangdatabase,CalGang,currentlyholdsdocumentationonapproximately150,000 Californians.2Statistics show that race,genderandagesignificantlydeterminewhoendsupinCalGang.Oneoutofevery40boysandmenof color between the ages of 15 and34 living inCalifornia is documented in CalGang as a gangmember.3

Lawenforcementofficersmakeallegationsofgang membership with little oversight or dueprocess. 4 This is because documentation iscollectedprimarilyforinvestigativepurposesandis not used by prosecutors as direct evidence incourt. In many instances, however, thisdocumentationresultsinsignificantharmstothepeople against whom the allegations are made.5Oneareawherethishasbeenparticularlytrueisin the immigration context, where allegations ofgang membership can result in seriousimmigrationconsequences.6

EXECUTIVESUMMARYGangallegationsmadeby lawenforcementagents frequentlypreventundocumentedimmigrants

fromgaininglegalstatusforwhichtheywouldbeotherwiseeligible.Theseallegations,madewithoutanyofthehallmarksofdueprocess,alsoincreasethelikelihoodanundocumentedimmigrantwillbeprioritizedfor deportation or held in immigration detention. Policy makers, elected officials, and even the lawenforcementagentswhomakethesegangallegationsareoftenunawareoftheimmigrationeffectsoftheseallegations.

This reportdocuments the findingsof theUC IrvineSchoolofLaw ImmigrantRights Clinic (IRC)based on the IRC’s legal representation of affected immigrants, collaboration with communityorganizations and other legal service providers, interviews with law enforcement agents, and review ofscholarly literature. First, the IRC found that gang allegations have a high risk of error as they areprimarilymadebasedonthesubjectivebeliefsoflawenforcementagentsinthefieldandareusuallymadewithoutany connection toa specific crime.This high riskof error is corroborated by the fact that theseallegationsareoverwhelminglymadeagainstAfrican-AmericansandLatinos.Second,theIRClearnedthatthese allegations are stored in computer databases that are networked to other agencies, includingImmigrationsandCustomsEnforcement(ICE)andtheDepartmentofHomelandSecurity(DHS).Third,theIRC learned that these allegations negatively affect the eligibility of undocumented immigrants forDeferred Action for Childhood Arrivals (DACA) and other forms of immigration relief. Fourth, the IRClearnedthatgangallegationsalsoaffectthetreatmentofimmigrantsheldinimmigrationdetention.

Consideringthesefindings,theIRCrecommendsthatlawenforcementagenciesberequiredto:(1)provide notice to every personwho law enforcement agents document as a gang member, (2) improveexistingnoticepractices,and (3)offerneutral reviewhearingswherepeopleerroneouslydocumentedasgangmembersmaycontestthatdocumentation.Byprovidingthesebasichallmarksofdueprocesstothoselawenforcementagentssuspectofgangmembership,theriskofunintendedimmigrationharmstopeopleerroneouslydocumentedasgangmemberscanbegreatlyreduced.

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The Immigrant Rights Clinic at UC IrvineSchool of Law (IRC) provides pro bono legalservices to individuals and organizations oncriticalissuesaffectinglow-incomeimmigrantsinOrangeCounty. In pursuing immigration relief forundocumented clients who are erroneouslyalleged of gang membership, the IRC haswitnessed how existing gang practices createunintended barriers to immigration relief. Wehave seen our clients endure prolonged stays indetention when detention was otherwiseunnecessary, lose eligibility for relief programssuch as deferred action, and generally become apriority for deportation in immigrationproceedings.

For people facing erroneous allegations ofgang membership, these obstacles lead to life-altering consequences, uprooting them frommany familial and community relationshipswithfriendsandlovedones,placesofworship,higherlearninginstitutions,andemployers.

Because access to jobs is a vital need forpeopleexitinggangs,creatingadditionalbarriersto formsof immigration relief thatprovideworkauthorization is counterproductive to the publicsafetygoalofencouragingpeople to leavegangs.

And for someonewhowasnever amemberof agang,thebarrierstoimmigrationreliefcreatedbyerroneousgangallegationsareplainlyunfair.

Thisreportwillsharewhatwehavefoundinourrepresentationofundocumentedimmigrantsfacingerroneousallegationsofgangmembershipandwillproposepolicyrecommendationstohelpprotectagainstfutureerroneousgangallegations.

We beginwith an overview of the processesthat California law enforcement agencies use tomake gang member allegations, including theways in which those allegations are stored andaccessed. Next, we illustrate how these gangallegationscanharmpeopleseekingimmigrationreliefthroughprosecutorialdiscretionorwhoaredetained during immigration deportationproceedings.

Finally, we provide recommendations forpolicychangestomitigatetheseharms,includingthe guarantee of notice and an opportunity tocontest theallegationsagainst them.Throughoutthereport,wehaveincludedstoriesofIRCclientsthat put a human face to the need for reform ofCalifornia’s gang documentation practices. Inthese stories, the names of clients have beenchangedtoprotectconfidentiality.

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GANGALLEGATIONSCalifornialawenforcementagenciesusemultipleprocessestodocument

alleged gang membership. In criminal justice proceedings, law enforcementofficersand localprosecutorsallegegangmembershipthroughadministrativeprocedures like arrest documents and plea negotiations. Formal court orders,suchascivilganginjunctions,presentanotherwaythatpeoplearedocumentedasgangmembers.Typically,however,peoplearedocumentedasallegedgangmembers through routine field patrols of law enforcement officers.While dueprocessprotectionsapplytosomeofthesesources,notallofthemaresubjecttoregulation or oversight outside of the law enforcement agency itself. Lawenforcementagenciesalsolackregulationandindependentoversightregardinghow the documentation of alleged gang membership is stored and sharedamong government offices. Because of the lack of transparency and publicaccountability,thesepracticesarenotwelldocumented.

SOURCESOFGANGALLEGATIONS InCalifornia,statelawenforcementagenciesallege gang membership through at least threedistinct processes: (1) criminal justiceproceedings,7(2) civil gang injunctions,8and (3)fieldcontactsbylawenforcementofficers.9CriminalJusticeProceedings There are several ways a person can beidentifiedasanallegedgangmemberincriminaljustice proceedings. Prosecutors or lawenforcementagentsmayallegegangmembershipwhen charging someone with a crime, in arrestreports, or in documentation of searchesconducted during an investigation. Alternatively,a defendant may admit to gang membership aspartofapleadeal,aconditionforprobation,orinjailorprisonintakeinterviews. Some types of gang allegations arising fromcriminal proceedings require law enforcementofficerstoprovethemincourt.Examplesofsuchallegations include sentence enhancements for

gang crimes or criminal contempt charges forviolations of a gang injunction.10However, othertypes of gang allegations arising from criminalproceedings do not have to be proven in court.For example, law enforcement officers candocumentgangmembershipusingevidencefromarrestreportsandsearchdocuments.11

There are instances when gangmembershipis shownrelativelyclearlyby the factsalleged inanarrestreportsuchaswhenadefendantshoutsthe name of his or her affiliated gang whileperpetrating violence against a rival gangmember. But the facts are not usually sostraightforward.Alawenforcementofficermightalso allege gang membership in an instancewheretheofficersuspectsthecriminaldefendantcommitted a domestic battery in retaliation forhis victim’s romantic affair with a rival gangmember.Inasituationlikethis,aprosecutormaychargethecrimeasagangcrimebasedsolelyonthesuspicionsofinvestigatingofficers.

Similarly, alleged gang indicia discovered insearches such as sports gear associated with alocal gang, or even gang graffiti, may not beevidenceofgangmembership.Indiciamaybeold

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orbelongtotheallegedgangmember’sfriendsorfamily,oritmaysimplybeanexpressionofurbanculture of a type that is commonlymistaken forgangindicia. In addition to court documents, arrestdocuments, and search documents, there areother points in criminal proceedings where lawenforcement officers document allegations ofgang membership. During plea negotiations,prosecutors may offer to reduce a defendant’scharges in exchange for a written admission ofgang membership or a guilty plea for a chargethatdemonstratesgangmembership.Defendantsmay find it in their best interests to admit gang

membership in exchange for reduced sentencesor immediate release from custody, even if theyarenotactivegangmembers.

Ifaperson isconvictedand incarcerated, jailand prison intake interviews may includequestions about gang membership.12In theseinterviews, a person may feel coerced to admitgang membership out of fear of entering jail orprison without the protection of a gang, even ifthat admission is not true. Admissions of gangmembership during an intake interviewmay beusedlaterasevidenceofgangmembership.13Ifapersonjoinsaprisongangforthefirsttimewhileincarceratedandisonlyactiveinthegangduring

SERGIO’SSTORY–ERRONEOUSALLEGATIONS SergioisanundocumentedchildhoodarrivalfromMexicowhoenduredalengthyimmigration

detentionasaresultoferroneousgangallegations.Heiscurrentlyseekingprosecutorialdiscretion.Sergio’sparentsbroughthimfromMexicowhenhewasachild.Sergioisnowinhistwentiesand

haslivedmostofhis lifeinasingleneighborhood.Heisnotandhasneverbeenagangmember.Withtheexceptionofasinglearrestfordrivingwithoutalicense,Sergiohasneverbeenarrestedorchargedwithacrime.HehasaU.S.citizendaughterand, sincehisownfather’sdeportation,hasbeenafatherfiguretohisyoungersiblings.

Afterbeingarrestedandbookedfordrivingwithoutalicense,Sergioshouldhavebeenreleasedbutwasinsteadheldbypolice inviolationofCalifornia’sTrustActandtransferred toanimmigrationdetentionfacility.OnceSergiosettledinatthedetentionfacility,herealizedthatalltheotherdetaineesweretransferredthereasaresultofsubstantiallymoreseriouscriminalconvictions.Hewasalsogivenareduniformtowear.Reduniformsareusedtosignifydetaineeswhoposeagreater threat tosafetythandetaineesinorangeuniforms.

Sergiowrotea lettertoanAdelantoofficeraskingwhyhewasdetained.TheofficertoldSergiothat itwasbecausehewasadocumentedgangmember.WhenSergioobjectedthathewasnotagangmember,theofficertoldSergiothatICEbelievesSergioisamemberoftheHillsidegangbecausehehas“H.S.” tattooed above one eyebrow. “H.S.” is Sergio’s daughter’s initials. There is no Hillside Ganganywhere in Sergio’s county.AGoogle search of “Hillsidegang” reveals two fictional gangs --HillsideTrecefromthemovieTrainingDayandHillsidePossefromthevideogameGrandTheftAuto.Thereisalsoasmall,littleknowngangnamedHillsideRivas,buttheyareinanothercounty.

Despite gang allegations, Sergio is currently out of detentionon bond and is petitioning forprosecutorial discretion.His local sheriff’s department has admitted theymade amistakewhen theyturnedSergioovertoICE.Hiscasehasreceivedagreatdealofpositiveattention,includingseveralnewsarticles and a resolution from his local city council supporting his application for prosecutorialdiscretion.However,Sergio’sallegedgangmembershipremainsanissueinimmigrationproceedings.

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incarceration, that person will remaindocumentedasagangmemberevenafterrelease.

The final way law enforcement alleges gangmembership using criminal procedures isthrough gang registries similar to sex offenderregistries.Anydefendantwhowasconvictedofacrimewithagangenhancementandwhofinishedserving his or her sentence, must register as agang member with local law enforcement for 5years after release, even if that person is nolonger a gang member or disagrees they wereeveragangmember.14CivilGangInjunctions The second process through which lawenforcement agencies make gang allegations isthrough civil gang injunctions. Gang Injunctionsare civil suits brought by city or countyprosecutors against an alleged gang for thepurposeofmaking it easier for lawenforcementofficers to stop and arrest suspected gangmembersinadesignated“safetyzone.”15 Gang Injunctions facilitate law enforcementofficers’ ability to allege gang membership. Agang injunction will either name alleged gangmembersindividuallyaspartiestotheinjunctionorname theentire gangas apartywitha list ofpeopleprosecutors allege are activemembersofthe gang. 16 Only recently have courts begunholding hearings to determine whether eachperson named as a gang member is actually anactiveparticipantinthegang.17Becausethesearecivil suits, people have no right to a court-appointed attorney in these hearings and rarelycome forward to challenge their inclusion in aninjunctionunlesschargedwithcriminalcontemptforviolatingtheinjunction.18Onceacourtordersan injunction, law enforcement officers maysubject new people to the injunction merely byservingthemnotice.19

FieldContactsbyLawEnforcementOfficers The third method law enforcement agenciesuse to allege gangmembership, field contacts, isby far the most common and usually happenswithout any court oversight or nexus with aspecific crime.20While law enforcement officerssometimes document people as gang membersbasedonevidenceobtainedasaresultoftargetedinvestigations, documentation is more oftenbasedonuntargeted consensual or investigatorystopsinthefield.21 Intargetedinvestigationsagainstagangoranindividual, law enforcement agencies mayconductwarrantedsearches,conductundercoveroperations, or interview confidentialinformants. 22 Based on the results of theseinvestigatory actions, law enforcement agenciescanthenallegegangmembershipnotonlyagainstthe targeted person under investigation, butagainstanyoneelsetheycometobelieveisagangmember during the course of theirinvestigation.23And during the more commonuntargeted consensual or investigatory fieldstops,gangallegationsmaybemadeonevidenceas slight as wearing a baggy white t-shirt andstandinginthecourtyardofone'sapartmentifanofficer believes that indicates gang clothing andpresenceinagangarea.24

Local law enforcement agencies are notboundbyanylegal limitsorstateoversightastowhotheycandocumentasgangmembersunlessthat documentation is entered into a gangdatabase shared with other agencies or adatabase subject to federal privacy rules.25If alaw enforcement agency enters thisdocumentation into CalGang, the allegation ofgang membership must be justified by at leasttwoofninecriteria.26However, thesecriteriaareaseasilymetas“seenaffiliatingwithdocumentedgangmembers,"“seenfrequentinggangareas,”or"seen wearing gang dress." 27 Although lawenforcement officers maintain this

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documentation iscollectedonly instops thatareconsensualorsupportedbyreasonablesuspicion,alleged gang members and defense attorneyshave found that the consensual stops are rarelyconsensualandtheinvestigatorystopsarerarelybasedonobjectivelyreasonablesuspicion.28RECORDINGOFGANGALLEGATIONS Allegations of gang membership made inconsensual and investigatory stops aredocumented in what are commonly called fieldinvestigation or field interview cards (F.I. cards)or Street Terrorism Enforcement and Protectionnotices(S.T.E.P.notices).29 F.I.cardsaretypicallyindexcardsthatofficersfill out after consensual or investigatory stops.30OfficersfilloutF.I.cardsformanyreasonsbesidesgang documentation, butmany law enforcementagencies’ blankF.I. cards include checkboxes foralleginggangmembership.31

S.T.E.P.noticesaretypicallyletter-sizedformsthatarespecificallyusedtodocumentallegationsof gang membership and include more detailsrelated to gang membership than F.I. cards.32SuspectsmaybeaskedtosignaS.T.E.P.noticeorgive consent to be photographed when servedwith the notice. 33 Alleged gang memberscomplain that officers often ignore the consentrequirementandthatsignaturesarerarely,ifever,givenknowinglyandvoluntarily. LawenforcementagenciesretaintheF.I.cardsandS.T.E.P.noticesandmayentertheinformationfrom them into “gang books” or into electronicdatabases commonly described as “in-house” or“local” databases. 34 So long as this gangdocumentation is kept within the agency andusedsolelyforinvestigatorypurposes,thereisnorequirement that agencies give notice of thedocumentation to the alleged gangmember andtheallegedgangmemberhasnoright tocontestthedocumentation.35

If the documentation is to be shared outsidetheagency, thedocumentationmaybesubjecttolaws governing the sharing of confidentialinvestigatory documents and the use of sharedgang databases.36However, these laws do notpreventlawenforcementagentsfromsharingthisgang documentation directly with other lawenforcement agencies when there is a right toknow and a need to know. 37 This includesproviding documentation to Immigration andCustomsEnforcement(ICE).38Agencieshavealsobeen accused of unlawfully sharing thisdocumentation directly with housing authoritiesandemployers.39 Inaddition toprovidinggangdocumentationdirectly toother lawenforcement agenciesuponrequest,gangdocumentationismadeavailabletoother agencies through shared gang databases.40Beginning in the 1990s, the Los Angeles CountySheriff began keeping gang documentation in anelectronic database called the Gang ReportingEvaluation and Tracking (G.R.E.A.T.) database.41This database was replicated by other lawenforcementagenciesacrossthestate,whichwasthen networked together as the CalGangdatabase.42 CalGang runs on a privately developedsoftware called GangNet which is also used byother law enforcement agencies across thecountry.43Through GangNet, a database in onejurisdiction can be searched by a lawenforcement agency in another. The databasesare networked together so that a lawenforcement agent with access to any GangNetdatabasecanalsosearchthecontentsoftheotherGangNet databases. 44 For example, a lawenforcement agent with access to ICEGangs, theGangNet database managed by ICE, can alsosearchCalGang.45 Unlike local lawenforcementagenciesuseofin-house databases for investigatory purposes,there are some restrictions to the use ofCalGang.46Juvenilesandtheirparentsmustbe

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ScreenshotsofGangNetsoftwareshowingtypesandusesofinformationtypicallyavailablethroughcomputerizeddatabasesofgangallegations47

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givennoticewhena juvenile isdocumentedas agangmemberinCalGangandjuvenileshavetheright to contest their inclusion in CalGang.48People have the right to request informationabout their CalGang file from their local lawenforcement agency, though some lawenforcementagenciesmaintainthisrightextendsonlytojuveniles.Itisalsounclearwhetheralocallaw enforcement agencymust share informationregarding gang documentation in CalGangentered by a different local law enforcementagency.

CalGang also has purge requirements. If apersonhasnonewgangdocumentationrecordedin a five-year period, that person’s informationshould be purged from CalGang.49However, asingleF.I.cardenteredwithinthat fiveyearswill

restartthefiveyearpurgeperiod.50 BecauseCalGangisdesignedwithsucha lowthreshold for entry, merely having an entry inCalGangshouldnotalonebeusedasevidenceofgangmembership.51CalGangdevelopedoutoftheearlierG.R.E.A.T.database,whichwasrecognizedas significantly over-inclusive.52Advocates of theover-inclusive approach to gang databases claimthatincludingagreaternumberofpeoplemakesthe database more useful for investigations.53Those advocates further claim that limiting theuse of the database to only law enforcementofficerswitharight-to-knowandaneed-to-knowprovides sufficient protection against harms topeople erroneously accused of gangmembership.54

Because of the risk that CalGang is over-

OMAR’SSTORY–NOEFFECTIVEMEANSOFCHALLENGINGOLDALLEGATIONS

Omarisaformergangmemberwhoconsideredpetitioninghis localDistrictAttorneyforremovalfromaganginjunction.However,becausehehasnorighttonoticeofallegationsofgangmembershipbylawenforcement,heisunabletodiscovertheevidenceagainsthimordefendhimselfagainsterroneousallegations. Omar is a migrant fromMexico who lawfully resides in the United Statesunder the ConventionAgainstTorture. Whenhewasa teenager,nearly twentyyearsago,Omarwasmemberofagangandwasconvictedofcrimesresultingfromhisparticipationinthegang.Afterashortprisonsentenceasayoung adult, Omar left the gang andmoved out of the neighborhood. Omar still lives away from theneighborhoodofhisoldgangandhasworkedfulltimeatthesamejobformostofthelastdecade.Hehasnotbeenarrestedforagangcrimeinnearlytwentyyears.

Evenafewyearsafterleavingthegangandmovingtoanewneighborhood,Omarwasaddedtoaganginjunctionagainsthisformergangbasedonoldinformation.Despitetheyearssinceheleftthegang,anddespitethelengthoftimehehasgonewithoutanarrest,Omarstillremainssubjecttoaganginjunctionandisstoppedatleasteveryfewyearsandquestionedbypolice.Basedonhisvisibletattoos,hisethnicity,andhisgeneralappearance,Omarbelievespolicecontinuetoerroneouslydocumenthimas an active gang member after each of these stops. Since he has never gone more than five yearswithout being questioned by the police, Omar believes he has never been purged from the gangdatabaseandisunlikelytoeverbepurged.

Omarwouldliketotakeadvantageofhiscounty’sinformalprocessforrequestingremovalfromtheganginjunction.However,hedoesnotknowwhatdocumentationoferroneousallegationsofgangmembership is kept in law enforcement files and so he cannot refute any allegations as part of hisremovalrequest.Omarhaddecidednottorequestremovalfromtheinjunctionatthistime.

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inclusive,itisCalGangpolicythatanentryintheCalGangdatabaseshouldnotbeusedasevidenceofgangmembership,butCalGangshould insteadbe used only as a way of accessing sourcedocuments such as F.I. cards that mightindependently indicate gang membership.55Infact, it isCalGangpolicythatthename“CalGang”not be placed in reports, memorandums,correspondence, statements of facts, or similardocuments.56 In addition to sharing gang documentationthrough CalGang and its networked GangNetdatabases, California law enforcement agenciesalso share gang documentation through theNational Crime Information Center’s ViolentCriminal Gang File (NCIC Gang File),maintainedby the Federal Bureau of Investigation.57TheNCIC manages twenty-one separate databases,referred to individually as files.58 These filesinclude,forexample,astolenvehiclefile,a

missingpersonsfile,animmigrationviolatorfile,andthelike.59TheNCICfileshavebeendescribedas“thelifelineoflawenforcement,”inpartbecause these are the files most commonlyaccessed by police officers on their patrol cars’laptopcomputers.60 The NCIC Gang File is populated by recordsenteredbycooperatinglawenforcementagenciesand is searchable by any cooperating lawenforcement agency. 61 The NCIC Gang File’sguidelines for entry and purge of gangdocumentationissimilartothoseofCalGang,butwithout the juvenile notice requirement.62Whilethe NCIC criteria for entry includes gang dressandpresenceinagangarea,theNCICcriteriaalsodemands that at least one of the followingadditionalcriteriabemet:self-admission,arrestsforgangactivity,orallegationsofmembershipbyaninformant.63

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IMMIGRATIONHARMSRESULTINGFROMGANGALLEGATIONS

Harmsthatresultfromerroneousgangallegationsrangefromincreased

scrutiny by police to enhanced punishment for criminal convictions. Forundocumented people seeking immigration relief, erroneous gang allegationscanhavesevereconsequencesinimmigrationproceedings.Specifically,wehavefoundsuchallegationsgreatlycompromiseapplicationsforreliefsuchasDACAandunnecessarilyprolongpeople’staysinimmigrationdetention.

HARMSINAPPLICATIONFORPROSECUTORIALDISCRETION,UVISAS,ANDSPECIALIMMIGRANTJUVENILESTATUS

Allegations of gang membership areparticularly problematic for undocumentedimmigrants whowould otherwise have a strongcase for prosecutorial discretion and similarimmigrationreliefbasedontheperson’sequities.Thisisbecausethedecisionofwhetherornottograntrelief,as thenameprosecutorialdiscretionimplies, relies entirely on the discretion ofindividualimmigrationofficialsandisnotsubjecttojudicialreview.64

Prosecutorial discretion is a type ofalternative to deportation granted by theDepartmentofHomelandSecurity(DHS)incaseswhereanoncitizenisdeemednottobeapriorityfor deportation.65 Prosecutorial discretion cantake various forms. For example, DHS coulddecide not to initiate deportation proceedingsagainst a noncitizen, stay a final deportationorder, or move for an administrative closure ofdeportationproceedings.66

Forundocumentedimmigrantswithanykindof criminal history, prosecutorial discretion hasbecome an increasingly important opportunityfor immigration relief. This is because

immigration law extensively relies on criminalhistory to make deportation decisions.67In asystem that has few outlets for equitablediscretion, undocumented immigrantswith evenminor crimes in their criminalhistory caneasilyfindthemselvesfacingautomaticdeportation.

DHS’s exercise of prosecutorial discretionimpacts populations differently. UndocumentedimmigrantsthatDHSdeemstopresentathreattonationalsecurity,bordersecurity,publicsafety,orthe integrity of the immigration system are noteligible for prosecutorial discretion and receivetop priority for deportation. 68 However,undocumented immigrantswith close ties to theUnited States, such as having family in the U.S.,attendingschoolintheU.S.,orservingintheU.S.military, receive favorable prosecutorialdiscretion and are not given top priority fordeportation.69

One form of prosecutorial discretion isdeferred action, which effectively serves as apromise on the part of the federal governmentthat itwill not attempt to deport a person for acertain amount of time.70Deferred action doesnot grant an immigrant any legal status in theUnited States but temporarily eliminates thethreat of deportation. A person with deferredactioncanalsoapply forworkauthorizationandother benefits, such as a driver’s license.71DHS

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has created formal procedures to applyfordeferred action for immigrants who fall intocertain categories -- Deferred Action forChildhood Arrivals (DACA) and Deferred Actionfor Parental Accountability (DAPA).72DAPA andanexpansion to DACA are currently suspendedpending a court challenge. 73 However, thepreviousDACAprogramisstillineffect.74

There is a significant risk in applying forprosecutorial discretion. 75 Applications require

that undocumented immigrants come out of theshadows and present themselves to DHS asundocumentedimmigrantscurrentlylivingintheUnited States.76For undocumented immigrantsfacingerroneousallegationsofgangmembership,this could be especially risky. Applications forprosecutorial discretionmaybring allegationsofgang membership to the attention of DHS thatwould have otherwise been unnoticed. As aresult, DHS could initiate deportation

CLAUDIO’SSTORY-FEAROFAPPLYINGFORPROSECUTORIALDISCRETION Claudio is a strong candidate for deferred action but has not applied because he fears that

erroneous gangallegationswill result in a denial ofhis petition andpossiblymakehim apriority fordeportation.

ClaudiowasbroughttoAmericabyhisfamilywhenhewasachild.Hehasneverbeenchargedwith a crime, but he did join a gang for several yearswhenhewas an adolescent. During that time,hereceivedgangtattoos,includingtattoosvisibleonhisfaceandneck.Butaftermarryingandstartingafamily,Claudiolefthisgang.Claudionowworksfulltimeandisanactivefathertohischildren.Despiteleaving thegang,Claudiocontinuestoberegularlystoppedandinterviewedbypolice. Becauseofhispermanent tattoos and residence in a high crime neighborhood, each of these police contacts couldjustifyrestartingtheclockonanygangdatabasepurgedate.

Additionally, thereisoneofficerwhoClaudiobelieveshasapersonalvendettaagainsthimandwho could be ensuring that Claudio’s gang documentation is never purged. On one occasion whenClaudio was driving his daughter to school, this officer arrested Claudio because Claudio fit thedescriptionofamurdersuspect.Duringthearrest,theofficerspitinClaudio’sface.Afteracommandercame out and determined Claudio was not the suspect they were looking for, the commanderreprimanded the officer in front of other officers and Claudio. Claudio believes this officer may beregularlyandfalselydocumentingClaudioasanactivegangmemberasanactofretribution.

Asa result,Claudiobelieves it likely that hewill continue tobedesignated asagangmemberdespiteneverhavingbeenconvicted ofa crimeandno longerbeingamember ofa gang. Becauseofthis, Claudio and his wife avoid letting Claudio drive with his children in the car for fear of policeconductifClaudioisstopped.

As a childhood arrival with no criminal history, Claudio should be a strong candidate fordeferredaction. Butbecause heworries that theDHSattorney that reviewshispetitionwilldiscovererroneous gang allegations,Claudio is afraid to apply. His local police department agreed to tell himiftheyhavedesignatedhima gangmember in CalGang,butnot to tell him ifother jurisdictionshavedesignatedhimorifDHSwillknowthoughashareddatabasethatanotheragencyhasdesignatedhimagangmember.Claudio’slocallawenforcementagencyclaimsheisnotcurrentlyenteredinCalGangbythem.However,becauseofthemanypossiblewayserroneousallegationsofgangmembershipmightbepresentedtoDHS,asofnow,Claudiohasnotappliedfordeferredaction.

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proceedings since gang allegations can justifyprioritizing a person for deportation. 77Furthermore, undocumented immigrants mustmake the decision whether to apply forprosecutorial discretion without adequateinformation. 78 As described above, gangallegationsmaybemadeandsharedwithDHSina variety of ways. Often, the allegations occurwithout notice to the person or scrutiny frompublic disclosure laws. Because prosecutorialdiscretion is subject to so little review andbecausesolittleofthedecisionmakingprocessisshared, it isunknownhowoftenerroneousgangallegations lead to refusals of prosecutorialdiscretion or to people becoming priorities fordeportationfromtheUnitedStates.However,thethreat alone is significant enough to preventmanyimmigrantsfromapplying.79

Undocumented immigrants facing erroneousallegations of gang membership face anadditional dilemma when applying for DACArelief. The DACA application requires applicantsto state whether they are or have ever been amemberofagang.80NotonlydoesDHSprioritizegang members for deportation, DHS alsoprioritizes the deportation of DACA applicantswho make false statements on theirapplications. 81 If an applicant denies gangmembershipbut iserroneouslydocumentedasagang member, the applicant may be made apriority for deportation if the DHS attorneybelievestheapplicantis lying.Thus,anapplicantwhohasbeenerroneouslydocumentedasagangmember risks being made a priority fordeportationwhicheveranswertheygive.

Gang allegations can also adversely impactotherapplicationsforrelieffromdeportationthatuse equitable discretion like U Non-ImmigrantStatus (U Visa) and Special Immigrant Juvenile(SIJ) petitions.82U Visas are visas offered tovictims of crimes in the United States, and insome cases, to the victim's children.83SIJ grantslegal status to qualifying unaccompanied

minors. 84 In both cases, there are someinadmissibility criteria, such as past criminalconvictions,thatcanbarapersonfromqualifyingfor legal status.85While courts can waive theinadmissibility requirements, prosecutors mayuse gang allegations as a reason to oppose awaiver.86AswithDACA,itisunknownhowoftenthishappens.EFFECTSOFGANGALLEGATIONSONIMMIGRATIONDETENTION

Immigrationdetention is the incarcerationofapersonwhileawaitingadeterminationofhisorher immigration status or deportation order. In1996, Congress required the mandatorydetention of noncitizens convicted of a widerange of criminal offenses, including minorones. 87 Recent court decisions, however, nowallowdetaineestoreceiveanindividualizedbondhearingafter180daysofdetention.88

At the individualized bond hearings, animmigration judge decides whether a detaineeposes a flight risk or is a danger to thecommunity.89If the judge determines that thedetainee is not a flight risk or danger to thecommunity, the judge will grant bond and/orplacethedetaineeundersupervisedrelease.

Adetaineewhoiserroneouslyallegedtobeagangmembermaybeunnecessarilydetained forlong periods of time and foreclosed of theopportunity to be released out on bond becauseofthegangallegations.

DHSprosecutorsmayusegangallegationsasevidence that the detainee is a danger to thecommunityandshouldnotbereleased,orshouldbereleasedonlyuponpostinganextraordinarilylarge bond.90DHS prosecutorsmay also point togang membership as evidence of a supportnetworkable toassist thedetaineein flightfromthecourt’sjurisdiction.

Insomecourts,DHSprosecutorsdonotevenneedtoexpresslystatethatadetaineeisaffiliated

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with a gang in order for the allegation tonegatively influence a bond determination.BecauseDHSofficesanddetentionfacilitiesoftencolorcode the foldersanduniformsofdetaineesthey believe are higher risk, a DHS prosecutor

needs only to call attention to the color of thefolder that corresponds to thedetainee’s caseoruniform.91Ajudgemightinterpretthecolorofthefolder or uniform as evidence of gangmembership and either raise or deny bond on

EDUARDO’SSTORY–GANGALLEGATIONSINIMMIGRATIONBONDHEARINGS Eduardo was deported to Mexico from the United States in 2015 as a result ofhaving been

erroneouslyidentifiedasagangmemberbylawenforcement.EduardowasbroughttoAmericabyhisparentswhenhewaspre-schoolage.Whilegrowingup

inAmerica, both parents picked fruits and vegetables full-time in nearby farms. As a result, Eduardowasmostlyraisedbyanolderbrotherwhowasahardcoregangmember.Eduardogrewupinfluencedbyhis brother’s style and surrounded bygang graffitiin his home. When Eduardo was still inelementary school, Eduardo begansneaking into neighbors’ houses and taking small items. WhenEduardowas arrested for this at 13 years old, his homewas searched. Based on the ganggraffiti hisbrotherleftaroundthehouse,thecityattorneyaddedEduardotoaganginjunction.Eduardowasnotamember ofhisbrother’sgang at that timebecausehis olderbrotherconsideredhim tooyoung toberecruited.

Several years after being added to the gang injunction, and after several incidents whereEduardo found himself treated like a gang member by law enforcement agents,Eduardo joined hisbrother’s gang.Butaftera fewyears,Eduardobegandistancinghimself fromthegang tospendmoretime with his girlfriend. Soon after, the two had a son together. Eduardo’s son was born withdevelopmentaldelaysandEduardobeganspendingallhisfreetimecaringforhissonandtakinghissontotherapysessions.Afterhisson’sbirth,Eduardoleftthegangentirely.Eduardo’sgirlfriendandsonarebothU.S.citizens.

During this same time, Eduardo’s mother petitioned for deferred action forEduardo underDACA. Thiswascomplicatedby severalnon-gang relatedcriminal convictionsEduardoreceivedasateenager and young adult, but his family retained a lawyer who was working on Eduardo’sapplication. Then, in 2013, Eduardowas arrested forwearing a borrowedsweater with a Cowboys’football logoandforpossessionofstolenproperty. WearingaCowboyssweaterwasacrimebecause,despite leaving the gang,Eduardowas still named in a gang injunction that considered the Cowboyslogoaganginsignia. Theseconvictionswereasetbacktohisdeferredactionapplication,butwithsometime,theycouldhavebeenexpungedandhisapplicationcouldhavegoneforward.However,athisfirstbondhearinginimmigrationdetention,theDHSattorneyaccusedEduardoofbeingadangertothecommunitybecausehewasagangmember.Eduardowasdeniedbond.Later,EduardoreceivedacopyoftheI-213formtheDHS attorney used in that hearing. That form alleged, in all capital letters, that Eduardowas a gangmemberbutgavenoevidenceforthatallegation.Theimmigrationjudgedeniedbond,therebyspeedingupthetimelineforEduardo’sdeportationandmakingitimpossibleforhimtoexpungehisconvictionsand apply for deferred action before a final deportation order. In 2015,Eduardo was deported toMexico,acountryhehadnotseensincebeforekindergarten,separatinghimfromhissonandhisson’smother.

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that basis. Even if the court does not deny bondbecauseofgangallegationsbutonlyincreasesthebond, a prohibitively high bond will force therespondenttoremainindetentionthesameasifbondhadbeendenied.

While detainees can challenge the DHS’sallegations of gang membership, most do notbecausetheylackthefinancialresourcestoretainattorneys for bond hearings.92Detainees oftenrely on pro bono legal orientation programs indetentionfacilitiestohelpthemprepareforbondhearings, but these programs are ill-equipped toadequately prepare detainees to argue theadmissibilityofgangallegations.93Furthermore, theSixthAmendmentguarantee

oftherighttoconfrontwitnessesdoesnotapplyin immigration court and so detainees have noright to question law enforcement officers whodocument gang allegations. 94 Additionally,respondents will rarely, if ever be adequatelyprepared to respond to gang allegations at bondhearings because there is no right to priordiscovery of the evidence thatwill be presentedatthehearing.95

Notbeingabletopostbondhasconsequencesfor thedetainee’s ability to pursue themerits ofhis deportation case. Detained respondentswhodonotpostbondwill oftenhaveyears less timetomaketheircasetoremainintheUnitedStates,

more difficulty accessing legal resources, andgreater challenges keeping ties to theircommunitythatcouldbeusefulfortheircase.96

Moreover, detaineeswill alsohave to endurethe hardships of beinglocked up in prison-likeconditions— includingdistance from family,friends, and community; loss of purpose; andtraumatizing feelings of humiliation andpowerlessness.97

Unfortunately, denial of bond or aprohibitively high bond is not themost seriousharmarespondentmightfaceasaresultofgangallegations. The most serious harm inimmigration detention comes when ICE agentsthreaten to share gang allegations with adetainee’shomecountry.98AllegedgangmembersoriginallyfromMexicoorCentralAmericafaceanalarming likelihood of extra-judicial murder intheir home country or murder byfeudingcriminal gangs. 99 While these threats by ICEagents are unlawful, complaintsof these threatshave been sustained against ICE in court.100Andeven if the ICEagentsmaking these threatshaveno intention of actually following through onthem, the very real possibility of death maycompel respondents to agree to voluntarydeparture or to whatever demands aremade ofthem.

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POLICYRECOMMENDATIONS

Considering law enforcement agencies’practiceofsharinginvestigatoryinformation,thehigh risk of erroneous gang allegations, and theprejudicial effect of gang allegations, currentpracticesintendedtoprotecttherightsofpeopleerroneously accused of gang membership areinsufficient.

The right to due process of law for peopleerroneously accused of gang membership canonly be satisfied by requiring that lawenforcementagenciesgiveallegedgangmembersnoticeofgangdocumentationandanopportunitytocontestallegationsofgangmembership.

1. ExpandNoticeRightsUnder current law, notice rights are given to

juveniles documented as gang members inCalGang.Thisrightshouldbeexpandedtoadultsand include all documentation of gangmembership by law enforcement agencies, notjustallegationsenteredintoashareddatabase.

2. ImproveNoticePracticesIdeally, notice should be provided in person,

as is the practice of law enforcement agenciesthat serve S.T.E.P. notices to alleged gangmembers. However, due to the inherentcoerciveness of in-person service by a lawenforcement officer, alleged gang membersshouldnotbeaskedtoconsenttodocumentationasgangmembersoraskedtowaivetheirrighttocontestgangallegationswhenservedwithnotice.

3. OfferNeutralReviewHearingsConteststogangallegationsmightbeginwith

a written request for review by the lawenforcement agency making the allegation.However, that agency’s determination should be

appealable in a hearing before a neutraladjudicator.Thisadjudicatorshouldnotbea lawenforcement officer but should instead be anindependent arbiter. Hearings should include arightof theallegedgangmembertodiscoveryofany evidence to be used against him or her inadvance of the hearing. Decisions should beappealableinstatecourt.

We recognize that a requirement of noticeand hearings could chill the collection of someinvestigatorydocumentsthateffectivelyservethepublic interest and promote public safety. If lawenforcement agencies continue to documenthundreds of thousands of people as gangmembers,providingnoticeandhearings toallofthem could become impossibly burdensome.However,this isonlythecaseif lawenforcementagentscontinuetomaintainvastlyover-inclusivedatabasesofgangallegations.If lawenforcementagenciesweretolimitthepeopledocumentedasactive gang members only those whosemembership can be proven and insteaddocumentotherpeopleasmerelyassociatedwitha gang, the burden of notice and hearing rightswouldbegreatlyreduced.

Because we at the IRC have found clear,documented harms resulting from allegations ofgang membership made by law enforcementagentsoutsideofanyjudicialprocess,webelievenoticeandanopportunity forahearingmustbeprovided whenever law enforcement agentsdocument a person as an active gang member.Anythinglessfailstoupholdtheprinciplesofdueprocess on which our immigration and criminaljusticesystemsdepend.

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ENDNOTES

1 See Watkins, Derrick and Richard Ashby, Gang Investigations: A Street Cops Guide, AMERICAN SOCIETY FOR LAW ENFORCEMENT TRAINING (2007); Anderson, John and Mark Nye, “Investigating the Gang Case: Law Enforcement’s Impact on Successful Prosecution” in Gang Prosecution Manual; NATIONAL YOUTH GANG CENTER (July 2009), available from the U.S. Department of Justice at https://www.nationalgangcenter.gov/content/documents/gang-prosecution-manual.pdf; Hufstader, Rebecca, Immigration Reliance on Gang Databases: Unchecked Discretion and Undesirable Consequences, 90 NEW YORK UNIVERSITY LAW REVIEW 671 (2015), available from New York University at http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-90-2-Hufstader.pdf; Alarcon, Daniel, How Do You Define a Gang Member?, NEW YORK TIMES MAGAZINE, May 27, 2015 available from the New York Times at http://www.nytimes.com/2015/05/31/magazine/how-do-you-define-a-gang-member.html?_r=0; Winston, Ali, You May Be In California’s Gang Database and Not Even Know It, REVEAL NEWS, March 23, 2016 available from Reveal News at https://www.revealnews.org/article/you-may-be-in-californias-gang-database-and-not-even-know-it/. 2 As reported in a response to a 2015 Public Records Act request to the CalGang Executive Board, on file with the UC Irvine School of Law Immigrant Rights Clinic. 3 This statistic was derived by comparing the 2015 Public Records Act request to the CalGang Executive Board with census data from www.census.gov. According to this data, there are approximately 5,600,000 men in California between the ages of 15 and 34. Subtract from that number the approximately 1,900,000 white, non-Hispanic men between the ages of 15 and 34 and the result is 3,700,000 men of color between the ages of 15 and 34. There are approximately 106,000 men between the ages of 15 and 34 in CalGang. Subtract from that number the approximately 7,000 white men between the ages of 15 and 34 in CalGang and the result is 99,000 men of color between the ages of 15 and 34 in CalGang. Dividing the 99,000 in CalGang from the 3,700,000 total results in approximately one in 40. 4 See Hufstader, supra; Anderson and Nye, supra, (discussing gang documentation regulations and recommendations for agency policies in the absence of regulations). 5 See Hufstader, supra; Youth Justice Coalition, Tracked and Trapped: Youth of Color, Gang Databases and Gang Injunctions (December 2012), available from the Youth Justice Coalition at http://www.youth4justice.org/wp-content/uploads/2012/12/TrackedandTrapped.pdf; Brown, Rebecca Rader, The Gang’s All Here: Evaluating the Need for a National Gang Database, 42 COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS 293 (Spring 2009); Chacon, Jennifer M., Whose Community Shield?: Examining the Removal of the Criminal Street Gang Member, UNIVERSITY OF CHICAGO LEGAL FORUM: Vol. 2007, Article 11 (2007); Wright, Joshua, The Constitutional Failure of Gang Databases, 2 STANFORD JOURNAL OF CIVIL RIGHTS AND CIVIL LIBERTIES 115 (November 2005); Leyton, Stacey, The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases, in CRIME CONTROL AND SOCIAL JUSTICE: THE DELICATE BALANCE edited by Darnell F. Hawkins, Samuel L. Myers Jr., and Randolph N. Stone (2003). 6 Hufstader, supra; Prosecutorial Discretion: How to Advocate for Your Client, AMERICAN IMMIGRATION COUNCIL (March 18, 2015), available at http://www.legalactioncenter.org/sites/default/files/pd_overview_final.pdf; Cabrera, Yvette, Troubled Pasts Force Hard Choices for Some Undocumented Immigrants, VOICE OF OC, February 8, 2016, available from the Voice of OC at http://voiceofoc.org/2016/02/troubled-pasts-force-hard-choices-for-some-undocumented-immigrants/. 7 California Penal Code §§ 186.20 et seq; People v. Lopez, 66 Cal. App. 4th 615, 623 (1998). 8 See Caldwell, Beth, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 AMERICAN JOURNAL OF CRIMINAL LAW 241(2010); Shiner, Max, Civil Gang Injunctions: A Guide for Prosecutors, AMERICAN PROSECUTORS RESEARCH INSTITUTE (2009) available from the National District Attorneys Association at http://www.ndaa.org/pdf/Civil_Gang_Injunctions_09.pdf; Werdegar, Matthew Mickle, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 STANFORD LAW REVIEW 409 (1999); Atkinson, Scott E., The Outer Limits of Gang Injunctions, 59 VANDERBILT LAW REVIEW 1693 (2006). 9 Hufstader, supra; Watkins and Ashby, supra; Anderson and Nye, supra; Youth Justice Coalition, supra; Brown, supra; Wright, supra. Joshua, supra; Leyton, supra.

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10 California Penal Code §§ 186.20 et seq; California Penal Code § 166 (a) (9). 11 Watkins and Ashby, supra. 12 Id. 13 See Watkins and Ashby, supra; Policies and Procedures for the CalGang System, CALIFORNIA GANG NODE ADVISORY COMMITTEE (2007), available from the State of California Department of Justice at https://oag.ca.gov/sites/all/files/agweb/pdfs/calgang/policy_procedure.pdf?. 14 California Penal Code § 186.30. 15 Caldwell, supra; Shiner, supra; Werdegar, supra; Atkinson, supra. 16 Atkinson, supra. 17 See Cabrera, Yvette, Judge: Residents Owed Due Process in Gang Injunction Case, VOICE OF OC (November 20, 2014), available from the Voice of OC at http://voiceofoc.org/2014/11/judge-residents-owed-due-process-in-gang-injunction-case/. 18 Jones, Alexander, Family Ties or Criminal Contacts: A Case for the Appointment of Counsel in Civil Gang Injunction Proceedings That Affect Family Relationships, 39 GOLDEN GATE UNIVERSITY LAW REVIEW 41 (2016). 19 Shiner, supra. 20 See Hufstader, supra; Watkins and Ashby, supra; Anderson and Nye, supra; Youth Justice Coalition, supra; Brown, supra; Wright, supra. Joshua, supra; Leyton, supra. 21 See id. 22 Watkins and Ashby, supra; Anderson and Nye, supra. 23 See id. 24 See Watkins and Ashby, supra; California Gang Node Advisory Committee, supra. 25 See Hufstader, supra; Anderson and Nye, supra (discussing gang documentation regulations and recommendations for agency policies in the absence of regulations); California Penal Code § 186.34; Title 28 Code of Federal Regulations Part 23. 26 California Gang Node Advisory Committee, supra. 27 Id. 28 See Katz, Charles M. and Vincent J. Webb, POLICING GANGS IN AMERICA at 207-209, Arizona State University (2006). 29 See Watkins and Ashby, supra; Anderson and Nye, supra; Youth Justice Coalition, supra; Brown, supra; Wright, supra; Joshua, supra; Leyton, supra. 30 See Watkins and Ashby, supra; Anderson and Nye, supra. 31 See Watkins and Ashby, supra; Anderson and Nye, supra; for a photograph of an LAPD field interview card showing space for gang allegations see Stoltz, Franke, LAPD’s Elite Metro Squad Swarms High Crime Neighborhoods Armed with 'Reasonable Suspicion', KPCC (May 26, 2015), available from KPCC at http://www.scpr.org/news/2015/05/26/51920/lapd-s-elite-metro-squad-swarms-high-crime-neighbo/. 32 Watkins and Ashby, supra; Anderson and Nye, supra. 33 Id. 34 Anderson and Nye, supra. 35 See Hufstader, supra; Anderson and Nye, supra (discussing gang documentation regulations and recommendations for agency policies in the absence of regulations); California Penal Code § 186.34; Title 28 Code of Federal Regulations Part 23.

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36 See id. 37 See id. 38 Memorandum of Understanding Between the Department of Homeland Security, Immigration and Customs Enforcement and California Department of Justice, Criminal Intelligence Bureau Regarding the Sharing of Information Relating to Criminal Street Gangs (2005), made available in response to a 2015 Public Records Act request to the California Department of Justice, on file with the UC Irvine School of Law Immigrant Rights Clinic. 39 See Youth Justice Coalition, supra. 40 See Hufstader, supra; Memorandum of Understanding, supra; Anderson and Nye, supra. 41 Anderson, Dacia, Penal Chapter 797: Un-handcuffing Minors from the Gang Life, 45 MCGEORGE LAW REVIEW 561 (2014), available from McGeorge University at http://www.mcgeorge.edu/Documents/Publications/penalty2-3-14.pdf. 42 Id. 43 SRA International, Inc., supra. 44 Id. 45 See SRA International, Inc., supra; Memorandum of Understanding, supra. 46 See California Penal Code § 186.34. 47 SRA International, Inc., White Paper: GangNet Software (2013) available from CSRA at http://www.csra.com/legacy/media/gangnet/GangNet8_WhitePaper2013.pdf 48 Id. 49 California Gang Node Advisory Committee, supra; Hufstader, supra. 50 See id. 51 See id. 52 See Ira Reiner, Office of the Dist. Att’y of LA, Gangs, Crimes, and Violence in Los Angeles (1992); Charles M. Katz, Issues in the Production and Dissemination of Gang Statistics: An Ethnographic Study of a Large Midwestern Police Gang Unit, 49 CRIME AND DELINQUENCY 485 (2003). 53 See Reiner, supra. 54 See Harold Valentine, Law Enforcement: Information on the Los Angeles County Sheriff's Department Gang Reporting, Evaluation, and Tracking System, available from the National Criminal Justice Reference Service at https://www.ncjrs.gov/pdffiles1/Digitization/151572NCJRS.pdf. 55 See California Gang Node Advisory Committee, supra. 56 Id. 57 See Federal Bureau of Investigation, About us: National Crime Information Center, available from the Federal Bureau of Investigation at https://www.fbi.gov/about-us/cjis/ncic. The NCIC Gang File was formerly part of the Violent Gang and Terrorist Organization File. 58 Id. 59 Id. 60 Id. 61 Id.

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62 See Privacy Act of 1974; Notice of Modified Systems of Records, 64 Federal Register 52343. 63 Id. 64 Hufstader, supra; American Immigration Council, Prosecutorial Discretion: How to Advocate for Your Client (March 18, 2015), available from the American Immigration Council at http://www.legalactioncenter.org/sites/default/files/pd_overview_final.pdf. 65 Id. 66 Id. 67 See Jason A. Cade, Enforcing Immigration Equity, 84 FORDHAM LAW REVIEW 661 (2015), available from the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2614149. 68 American Immigration Council (2014), supra. 69 Id. 70 Id. 71 Id. 72 Id. 73 State of Texas, et al v. United States et al.; Memorandum Opinion and Order, Feb. 16, 2015, (No. 1:14- CV-254), available from the American Immigration Council at http://www.aila.org/infonet/dist-ct-state-of-texas-v-usa-02-16-15 (“Injunction”). 74 National Immigration Project, Requesting Prosecutorial Discretion for Individuals in Removal Proceedings or Detention While the Injunction in Texas, et al. v. United States Remains in Effect (July 29, 2015), available from the National Immigration Project at https://nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/pr/2015_29Jul_Request-Pros-Discret.pdf. 75 See American Immigration Council (2015), supra; American Immigration Council, Deferred Action for Childhood Arrivals (August 27, 2014), available from the National Immigration Project at https://nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/daca/2014_27Aug_daca-revised.pdf. 76 See id. 77 See id. 78 See id. 79 See Hufstader, supra; American Immigration Council (2014) supra; Claudio’s Story, infra at page 10. 80 See American Immigration Council (2014), supra. 81 Id. 82 See Department of Homeland Security, Victims of Criminal Activity U Nonimmigrant Status, available from the United States Citizenship and Immigration Services at https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status; Department of Homeland Security, Special Immigrant Juvenile (SIJ) Status, available from the United States Citizenship and Immigration Services at https://www.uscis.gov/green-card/special-immigrant-juveniles/special-immigrant-juveniles-sij-status. 83 Department of Homeland Security, Victims of Criminal Activity U Nonimmigrant Status, available from the United States Citizenship and Immigration Services at https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status.

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84 Department of Homeland Security, Special Immigrant Juvenile (SIJ) Status, available from the United States Citizenship and Immigration Services at https://www.uscis.gov/green-card/special-immigrant-juveniles/special-immigrant-juveniles-sij-status. 85 See Taurel, Patrick, Screening Potential DACA Requestors for Other Forms of Relief, AMERICAN IMMIGRATION COUNCIL (2014) available from the American Immigration Council at http://www.legalactioncenter.org/sites/default/files/fin_other_forms_of_relief_0_0.pdf; Abarca, Michelle, Deborah Lee Kathleen Moccio, and Kristin Petri, The ABCs of Representing Unaccompanied Children (2011), AMERICAN IMMIGRATION LAWYERS ASSOCIATION, available from the American Immigration Lawyers Association at http://aijustice.org/docs/AILA-representing-%20unaccompanied-children.pdf. 86 Id.; Abarca et al, supra. 87 See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (110 Stat. 3009-546). 88 See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013). 89 See In re Guerra, 24 I&N Dec. 37 (BIA 2006). 90 See Eduardo’s Story, infra at page 11. 91 Interview with Caitlin Sanderson, Staff Attorney at the ACLU of Southern California and former Legal Director of the Esperanza Immigration Project, March 15, 2016. 92 See Srikantiah, Jayashri, David Hausman, and Lisa Weissman-Ward, Access to Justice for Immigrant Families and Communities: A Study of Legal Representation of Detained Immigrants in Northern California, 11 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES 207 (2015). 93 Sanderson, supra. 94 See Holper, Mary, Confronting Cops in Immigration Court, 23 WILLIAM & MARY BILL OF RIGHTS JOURNAL 675 (2016). 95 See Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995). 96 See id. 97 See id. 98 Interview with Erika Pinheiro, Staff Attorney at the Central American Resource Center, March 25, 2016 (describing a client granted amnesty under the Convention Against Torture after an ICE officer threatened to send gang documentation to Honduran police in order to have the client killed by a death squad upon arrival in Honduras). 99 Washington Office on Latin America, Youth Gangs in Central America: Issues in Human Rights, Effective Policing, and Prevention, WOLA SPECIAL REPORT (2006) available from the Washington Office on Latin America at http://www.wola.org/sites/default/files/downloadable/Citizen%20Security/past/GangsReport_Final.pdf. 100 Pinheiro, supra.