SWEPT UP IN THE SWEEP: The Impact of Gang Allegations on Immigrant New Yorkers May 2018 SWEPT UP IN THE SWEEP: The Impact of Gang Allegations on Immigrant New Yorkers The New York Immigration Coalition (NYIC) City University of New York (CUNY) School of Law’s Immigrant and Non-Citizen Rights Clinic (INRC) May 2018 Authors & Researchers Nermeen Arastu Anu Joshi Maya Leszczynski Camille Mackler Talia Peleg Kim Sykes Additional Researchers Colin Brucia Victor Cheng Dumitru Efros Contributors New York Immigration Coalition City University of New York (CUNY) School of Law’s Immigrant and Non-Citizen Rights Clinic CLEAR Project Hofstra University School of Law Editorial Support JP Perry Cover photo: Jocsan Hernandez, left, and other students of Maria Victoria Mendoza class at Brentwood East Middle school share their sections of “Luchando por un Mejor Futuro” (Fighting for a Better Future), a book they created, in Brentwood, N.Y. A group of young immigrants has written the book about how they fled street gangs in Central America in search of a better life in a New York town now plagued by the same gang violence, 14 Jun 2017. Editorial Credit: AP Photo/Michael Noble Jr. Photos on pages 3 and 4: © Jano Tantongco. This page top, and all other images: stock photos from iStock, posed by model, photographer credit on image. 2 Swept Up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers | The New York Immigration Coalition SWEPT UP IN THE SWEEP: The Impact of Gang Allegations on Immigrant New Yorkers May 2018 © Jano Tantongco Swept Up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers | CUNY School of Law 3 © Jano Tantongco ACKNOWLEDGMENTS This report would not be possible without the insights, guidance, and stories of many prac- titioners, advocates, organizers, and community members who work with those, or are themselves, directly impacted by the devastating immigration policies this report describes. The authors are grateful to Prof. Babe Howell for her invaluable insights. We also thank INRC students Stephanie Cabrera, Himani Gupta, Chris Kovalski, My Le, and Reid Miller for their contributions to this project. Additional thanks go to Abja Midha of The Education Trust-New York for generously lending her expertise in reviewing the school-related sections of this report. Many thanks to the Immigration Litigation Fund at Borealis Philanthropy for their ongoing support of the NYIC’s work on Operation Matador. Finally, we would like to thank Main Street Legal Services, Inc., CUNY School of Law, and the Equal Justice Works AmeriCorps Legal Fellowship Program for their generous support. 4 Swept Up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers | The New York Immigration Coalition TABLE OF CONTENTS Executive Summary ......................................................................... 6 Methodology .................................................................................. 8 Key Findings ................................................................................... 9 Chapter One: How Failed Immigration Policies Contributed to the Growth of MS-13 ...................................................................10 Chapter Two: The 2014 Northern Triangle Humanitarian Crisis ..............13 Chapter Three: Creating Fear: The Distortion of the MS-13 Threat ..........15 Office of the Attorney General ......................................................... 17 Chapter Four: A Dangerous Path: Conflating Gang and Immigration Enforcement ................................................................19 Operation Matador: Trump Administration’s Crackdown on MS-13 on Long Island........................................................................... 19 Living Under Siege: The Devastating Consequences of Gang-Policing on Immigrants ............................................................................ 21 Gang Databases ......................................................................... 23 Law Enforcement Stops and Questioning ............................................ 26 Using Gang Allegations to Allege “Public Safety Concerns” ....................... 29 Evidence Used by the Department of Homeland Security to Allege Gang Involvement ....................................................................... 30 Use and Impact of Gang Allegations by the Department of Homeland Security Arising in the School Context ................................................ 33 Devastating Impact of Gang Allegations .............................................. 36 Chapter Five: Swept up in the Sweep .................................................37 Community Tensions .................................................................... 37 Long Term Impact: Muslim Communities in a Post-9/11 America ................. 38 Recommendations for State and Local Jurisdictions ............................... 41 Endnotes ......................................................................................43 Swept Up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers | CUNY School of Law 5 ©iStock.com/aijohn784 EXECUTIVE SUMMARY he United States is no stranger to the use of expansive profiling and discriminatory policing when facing real or perceived threats to national security. Whether it was the casting of Japanese Americans as traitors during World War II, civil rights leaders as radical threats to the country during the civil rights movement, Americans Muslims as national security threats after TSeptember 11th, or young black and brown men as criminals through stop-and- frisk policing—the use of fear and stereotypes to justify discriminatory tactics has repeatedly come at the expense of individuals’ constitutional and civil rights. The end result? The dehumanizing of people of color, destabilizing of community structures, chilling of constitutionally protected speech and activity, and ultimately the mass incarceration and deportation of entire communities. The Trump administration has consistently sought to cast immigrants as threats to the eco- nomic and national security of the United States. And thus, MS-13, a gang born in the United States and grown in Central America, has become a favorite foil for President Donald Trump, as well as for Attorney General Jeff Sessions and White House Chief of Staff John Kelly. >> 6 Swept Up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers | The New York Immigration Coalition The Trump administration has taken a specific narrative course to elevate the status of MS-13 to a household name, responsible for invading armies of Central American migrants who are using supposed loopholes in immigration law to sow terror in the quiet American suburbs of Long Island. The problem is that the threat of MS-13 is purposely exaggerated to manipulate support for unfet- tered immigration enforcement in the name of gang-policing, without addressing the effectiveness of such policies or their devastating consequences—the large-scale detention and deportation of Latinx individuals. All empirical evidence shows that MS-13 on Long Island lacks basic organiza- tion and coordination. And while MS-13 is undoubtedly violent, the gang is not, by far, responsible for the majority of crimes committed on Long Island or, more broadly, in New York. The Trump administration has created and exploited public fear of MS-13 to further the Administration’s own anti-immigrant agenda. Immigration and Customs Enforcement’s (ICE) “Operation Matador” (Matador) launched in 2017 as part of “Operation Community Shield” specifically seeks to “target violent gang members and their associates.” The most troubling aspect of Matador is that it leads to increased local law enforcement collaboration with ICE. This collaboration exponentially increases the devastating impacts of discriminatory policing by compounding it with immigration enforcement. Allegations of MS-13 affiliation or membership are routinely made by immigration officers, often without credible evidence or the possibility for an individual to challenge the designation. Schools, local police departments, and federal law enforcement agencies all By broadly casting communicate in secrecy and trap Central American migrants in a immigrant Latinx growing and obscure web of enforcement. youth as gang By broadly casting immigrant Latinx youth as gang members to be members to targeted for incarceration and deportation, even the outward pre- be targeted for tense of basic rights and due process is pushed to the side. Gang policing, like unconstitutional stop-and-frisk policies, has dispro- incarceration and portionately impacted black and brown men. Notoriously flawed deportation, even and unregulated, gang databases have minimal inclusion criteria. the outward pretense Simply living in a building or even a neighborhood where there are of basic rights and gang members, wearing certain colors or articles of clothing, or due process is speaking to people law enforcement believe to be gang members pushed to the side. can lead to inclusion in a gang database. Often individuals do not know they have been listed in such a database, and no mecha- nism exists to challenge inclusion. Similar vague criteria, such as the apparel an individual wears or a drawing made in a notebook, are used to label Latinx youth and young men as gang affiliated and then to subsequently justify their arrest, detention and deportation. The Department of Homeland Security (DHS) does not need to make any showing of gang affil-