Consequences of Unreliable Transnational Gang Allegations

Camilo is seeking safety in the U.S. after fleeing gang threats and corrupt police. After enduring months of brutal homophobic harassment and abuse in immigration detention, Camilo learned that Immigration and Customs Enforcement (ICE) mistakenly believes he is a gang member. ICE justifies Camilo’s continued detention based on accusations of gang membership that arise from transnational agreements that the government has largely hidden from public view. Such unreliable data sharing programs have landed Camilo, and countless others, in a dark hole in the immigration system. 

Camilo is not alone; he is one of numerous swept up in gang-centered enforcement and information sharing programs involving foreign police forces. These programs are plagued by errors that lead to wrongful detention, deportations, and family separations. Alarmingly, ICE’s interim guidance on enforcement and removal priorities issued in February 2021 included a nebulous category for prioritized enforcement of people linked to gangs and transnational criminal activity. These vague categories harm asylum seekers who escaped gang violence before they fled to the U.S., as well as Black and Latinx immigrant communities wrongfully labeled and overrepresented among those accused of gang-affiliation by law enforcement. 

Importantly, ICE has removed the gang categories from its new memo on enforcement priorities, released today. Now, ICE must put an end to the unreliable gang-centered enforcement approach of past administrations. Congress also must conduct stricter oversight and reject any legislative provisions that would further criminalize non-citizens using gang-based categories.

Consequences of gang membership allegations  
The Immigration and Nationality Act (INA) imposes draconian penalties for nearly every form of criminal conviction, but does not explicitly define gang membership or outline specific immigration consequences. ICE’s framework for applying transnational gang-related labels is opaque, arbitrary, and known for unreliable and racially biased criteria. Still, a mere gang allegation carries dire consequences in various immigration adjudication contexts and jeopardizes immigration relief, including asylum, temporary relief under the Deferred Action for Childhood Arrivals (DACA) program, and other immigration benefits. This can be true even in cases where the individual seeking an immigration benefit is unaware of the gang allegations. Gang allegations can be sufficient to trigger the government’s authority to deny immigration benefits, to detain individuals, and to initiate removal proceedings that can lead to deportation.

Gang affiliation allegations can be made behind closed doors, without judicial scrutiny. Many people are trapped in detention or subject to deportation based on discretionary determinations by the Department of Homeland Security (DHS) without any opportunity to challenge the evidence used against them in immigration court. People in immigration proceedings are often never afforded a bond hearing and deported without ever seeing a judge. Unless challenged by an immigration attorney, ICE often does not even disclose the source of the allegation to those accused who are deprived of their liberty. 

Even in cases where people do have an attorney, there are huge hurdles when it comes to challenging claims of gang affiliation. Immigration proceedings lack the same rules of evidence provided in criminal proceedings, making it more difficult to dispute accusations of gang affiliation when they arise. When data is transmitted from foreign police to Customs and Border Protection (CBP), for example, the burden falls on the accused to prove the errors in such information, which can have life or death consequences.

Information sharing: the SAFE Program and other ICE enforcement transnational task forces 
Both ICE and CBP agents have broad access to information gathered through foreign intelligence programs that cast a wide net over people crossing the U.S. border. One program that fuels the sharing of information on asylum seekers fleeing violence is the Security Alliance for Fugitive Enforcement (SAFE) program, which operates primarily out of El Salvador, as well as in Guatemala, and Honduras.

In 2012, ICE’s Enforcement and Removal Office (ERO) created the SAFE pilot program in concert with Salvadoran law enforcement. According to ICE, ERO agents assemble task forces comprised of foreign law enforcement agencies and immigration authorities, and use information gathered by local authorities to target people in the U.S. for deportation. In December 2017, ICE reported deporting more than 800 people to El Salvador as a result of the SAFE program.

Camilo is one person currently trapped in ICE detention in part because of this program. Camilo witnessed the murder of a friend by gang members and later testified in court against the gang. However, after this trial, the police forced him to testify in other completely unrelated gang cases. As a result, the gang threatened to kill his family and attempted to murder him on multiple occasions. He fled for his life and made his way to the United States seeking safety.

Records obtained by NIJC attorneys show that after Border Patrol arrested Camilo in April 2021, agents ran his information through DHS processing systems, which indicated he was “affiliated” with the MS-13 gang. Camilo explained to CBP officials that he suffered discrimination for being gay in his home country, and was threatened by MS-13 gang members and by police. Nonetheless, he was tagged as gang-affiliated by CBP due to information shared through the SAFE ICE-ERO task force. He remains in ICE detention, fearing being targeted and killed if deported to his home country. 

UN investigations have found that U.S.-funded police forces in El Salvador falsely accuse people of gang membership. The State Department’s human rights reports on El Salvador detail extensive police involvement in arbitrary arrests, torture, and extrajudicial killings. In countries such as El Salvador, where gang violence is widespread, authorities’ heavy-handed approach to gangs results in over-crowded jails with low-level individuals caught up in gang sweeps, and people wrongfully accused by corrupt police forces. 

SAFE and related programs have expanded to regions where security forces receiving U.S. assistance and training share unreliable information. DHS initiated a program to share criminal history with Mexico in 2014, for example, and then expanded that program to El Salvador, Guatemala, Honduras, Jamaica, the Dominican Republic, and the Bahamas. ICE uses information obtained from this program to determine whether to release people from detention. Further, DHS signed biometrics data sharing agreements with El Salvador, Honduras, and Guatemala in 2019, as part of its third country asylum offshoring agreements. The current administration terminated the Asylum Cooperation Agreements (ACA’s); still, there is no indication that the biometric data sharing agreements have ended. Worse yet, the Biden administration has recently proposed increasing information sharing between law enforcement in El Salvador, Honduras, and Guatemala, and U.S. agencies with respect to gang activity.

Information sharing with foreign governments & family separations  
The Trump administration’s family separations relied initially on the Zero-Tolerance policy, which resulted in the systematic separation of asylum seeking families so parents could be prosecuted for entering the U.S. without permission. Separations, however, did not end with the June 2018 court order stopping the Zero-Tolerance program. Internal government records verify that hundreds of separations after June 2018 were based on suspected gang involvement and criminal histories in the “U.S. or home country.” 

Parents represented by NIJC have shared their testimonies about how Border Patrol separated them from their children on the basis of erroneous gang allegations. Maria’s reason for separation is listed in government records as “parent has a criminal history (U.S. or home country).” It was not until a month after the separation, however, that Maria was told that the reason for the separation was based on allegations of a criminal record in her home country. NIJC lawyers working on her case had to obtain official documents from El Salvador confirming that she in fact had no criminal record. 

Elena is a Salvadoran mother of two children taken from her after entering the U.S. in April 2019. Border patrol agents separated her because she happened to be questioned by Salvadoran police a decade earlier and was confused for a gang suspect because gang members were brought to the police station at the same time. NIJC provided the Justice Department with an official clearance document from the Salvadoran government. Elena was finally released and reunified with her children after being separated for more than two months.

The sources of the gang and criminal accusations came from a transnational intelligence-sharing program called the Joint Border Intelligence Initiative. This initiative allowed CBP and U.S. law enforcement access to participating countries’ criminal databases and histories of suspected gang members and criminals entering into or already in the U.S. According to the U.S. State Department, in 2018 the intelligence program helped CBP identify more than 2,000 immigrants with alleged criminal histories, including individuals with suspected gang affiliations. It does not indicate how many of those were asylum seeking families separated at the U.S. Southern border. 

The reliance on Salvadoran police raises a host of troubling issues, including a lack of vetting and unsubstantiated intelligence used by U.S. immigration officials. Rights defenders have long raised concern over DHS personnel training, advising, and mentoring law and migration enforcement authorities in Mexico and Central America. The programs have a track record of exacerbating rights violations of asylum seekers and migrants, and should not form the basis of any legitimate policy today. 

Recommendations 
Foreign data sharing practices compound biased systems, are unreliable, spread false allegations, and are used in ways that wrongfully criminalize migrants. As a vital step in disentangling the criminal and immigration legal systems, ICE must end its reliance on gang affiliations in its enforcement practices, and terminate foreign intelligence sharing agreements that lead to separations of families.

The Biden administration’s Family Reunification Task Force must also ensure that people separated because of gang allegations and foreign intelligence programs are not excluded from reunification efforts and that no further separations occur on the basis of foreign intelligence sharing or any gang-related enforcement programs. Finally, members of Congress must oppose any efforts to further criminalize immigrants through legislative proposals related to gang affiliation, and conduct thorough oversight into the current practices relating to gang-based enforcement programs.