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The Shame of the State of the Union

Donald Trump. Photo by Gage Skidmore
Donald Trump. Photo by Gage Skidmore

There were many awful aspects of President Trump’s State of the Union message, but we have a personal perspective on one in particular, thanks to our work on behalf of immigrants who have been accused of being gang members based on dubious or non-existent evidence.

Unsurprisingly, Trump used his State of the Union Address to link undocumented immigrants with rampant crime – even though evidence shows that undocumented immigrants commit fewer crimes per capita than native-born citizens. He tried to capitalize on the grief of families who have lost loved ones to MS-13 gang violence.
Shame on him. Yes, gang violence is a real problem, but using it as an excuse to deny immigrants a fair shot at building a life in the United States is demagoguery. Many of these immigrants are, in fact, fleeing gang violence in their native countries. Under our immigration laws, they have the right to live in peace and security while they work to obtain immigration relief through the court system.

It was especially troubling to hear Trump extravagantly praise a Homeland Security Investigations (HSI) Special Agent, claiming that his “team” arrested more than 220 MS-13 gang members on Long Island. Through our work we know something about some of those arrests. The NYCLU has worked to uncover information about how school administrators, local police and ICE work together to ensnare innocent children in the Trump deportation dragnet. Last summer, the ACLU of Northern California filed a lawsuit, Saravia v. Sessions, challenging the Trump Administrations detention of immigrant youth without due process. 
HSI works with local police in Suffolk County, NY and elsewhere to arrest and detain undocumented immigrant teenagers. Many of the teenagers they arrest have committed no crimes, and are not gang members. Immigration authorities had already determined they did not pose a danger and released them to live with  parents or guardians while their hearings in Immigration Court progressed.  
But their compliance with the law and attendance at their immigration proceedings did not stop them from becoming targets in the Trump administration’s efforts to demonize immigrants. In the course of the Saravia lawsuit, the governments evidence revealed that HSI relies on discredited means of “profiling” gang members based on what they wear, where they hang out, and who they are seen with. Then, based on vague allegations by unnamed local police officers, HSI inputs allegations of gang affiliation into a boilerplate file memo, on the basis of which it directs that a certain individual should be arrested by ICE and locked up because he fits the profile. At no point does HSI get a judicial warrant or present its alleged evidence to a judge. For the Trump administration, that is precisely the point.
The NYCLU knows from its on-the-ground work in Suffolk County that many of these unfounded allegations of gang affiliation originate in schools and with local law enforcement. Police from Suffolk County are collaboratingwith the Trump administration to target immigrant children for arrest by ICE when they have not committed a crime and so police cannot make a criminal arrest. This means that kids whom the police department knows it does not have the evidence to prosecute for any crime are nonetheless being summarily snatched up by ICE, torn from their communities, and shipped to jail-like facilities, hundreds or thousands of miles from their families and their immigration lawyers.
The labeling of immigrant children as gang members—sometimes based on nothing more than wearing a Chicago Bulls logo, holding a rosary, playing soccer with suspected gang members, or displaying the area code or flag of their home country—is  the first step in the school to deportation pipeline. The NYCLU filed a Freedom of Information Act request last year to get to the bottom of how in Suffolk County, in particular, schools, the County’s police department and ICE all work together to make these detentions happen.

At the time the Saravia lawsuit was filed, these kids were not just being locked up; they were often being transported thousands of miles from home to maximum-security juvenile prisons, without any notice to their families or their immigration lawyers. The government was keeping them detained with no plan to provide a hearing in front of a neutral judge who could decide whether their detention was justified.

As a result of a preliminary injunction in the ACLU’s case, an undocumented child who is living with a sponsor and is arrested based on claims of gang affiliation must now be given a hearing within seven days of detention so that an immigration judge can decide if the arrest is warranted. We have now had Immigration Court hearings for 29 of these minor children. In 27 of the 29 cases, judges ordered the children be immediately released because they do not pose any danger to the community. Many youth had been detained and separated from their families for half a year by the time of these hearings—time that the judges concluded served no purpose. 

Unfortunately, there’s still much more to do on this front. We’ve been in touch with immigrant youth and their parents who say the phenomenon of spurious gang allegations leading to detentions continues,  often without the promise of relief offered by the injunction in Saravia. For young people who have turned 18, redetention by HSI means incarceration in an adult jail and often a wait of months without any opportunity to see a judge or ask for release. 
Yes, there is a gang problem. But that does not equate with an immigration problem. Politicians who brag about the number of immigrants they’ve arrested without evidence are seeking political advantage by encouraging violations of our Constitution and laws. They are promoting inhumane policies based on fear. Their program is one that our country should be ashamed of.

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Civil Liberties Union