The School to Deportation Pipeline

• Citation: Vol. 34 No. 3
• Publication year: 2018

The School to Deportation Pipeline

Laila L. Hlass
Tulane University, lhlass@tulane.edu

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THE SCHOOL TO DEPORTATION PIPELINE

Laila Hlass^*

Abstract

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the crosshairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as "the school to deportation pipeline."

Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths' clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and

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immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings.

Introduction

José was swept away one morning—law enforcement agents tore apart his dad's house and took José into custody. They interrogated him about kids in his neighborhood, a recent crime, and whether he was in a gang. He answered their questions as best he could. Although the police did not charge him with any crime, they also did not let him go. Instead, the police directly handed José over to agents of Immigration and Customs Enforcement (ICE). At his immigration court bond hearing weeks later, José learned for the first time that he was accused of being a gang member. The ICE prosecutor's proof of José's alleged gang affiliation consisted of a document showing that his name appears in a gang-member database and presenting social media pictures in which José made a peace sign or was wearing his school colors or a popular sports team hat. Based upon this showing, the Immigration Judge decided José was too dangerous to be released upon bond. As a result, José stayed in detention for months during the entirety of his immigration court proceedings. Because a family court had determined that José had been neglected and abandoned by his mother, he was eligible to pursue a statutory path to lawful immigration status called Special Immigrant Juvenile Status. When the day of his immigration hearing finally arrived, however, the ICE prosecutor opposed José's application. The prosecutor argued that José was a "gang associate," submitting as evidence a school incident report in which a school official stated that José was seen hanging out with a student who admitted to being in a gang and that another student claimed hearing from someone else that José was in a gang.

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Although José had never been disciplined or even asked about the accusation, the school safety officer sent this incident report to a regional law enforcement intelligence database accessible to immigration agents. The immigration judge relied upon this school incident report to find that José was a "gang associate," and therefore, he denied the application for Special Immigrant Juvenile Status on discretionary grounds and ordered José deported from the United States.¹

Attorney General Jeff Sessions has called the southwest border "ground zero" for the war on drugs and immigration, invoking images of gangs who purportedly "flood our country with drugs and leave death and violence in their wake."² President Trump announced his intention to deport "bad hombres" and claimed Mexican immigrants are "rapists" who are "bringing drugs" and "crime" to the United States.³ This discourse is not new. Over the last thirty years, politicians and commentators have frequently linked the regulation of immigration—particularly of Latinos—to fighting the war on drugs and crime. In the 1990s, for example, President Bill Clinton said that to "combat an unholy axis of new threats from terrorists, international criminals, and drug traffickers" the nation must crack down on "gangs and guns and drugs, . . . bar violent juveniles from buying guns for life," and hire "1,000 new border patrol agents."⁴

As the war on drugs became a ballooning dragnet capturing poor communities of color,⁵ the war on immigrants has followed suit. The

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past three decades of immigration enforcement have seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables:⁶ criminals, gang members, and terrorists. Immigration laws have become more draconian with broader categories of civil violations, crimes, and terrorism triggering deportation and fewer pathways to lawful status. For the individuals and their families affected by these laws, the consequences are harsh and often disproportionate. This is equally true for immigrant youth, who have few age-related protections in the immigration context. Immigrant children, and particularly youth of color, increasingly find themselves in the crosshairs of both unforgiving immigration enforcement and aggressive law enforcement. In both systems, racial biases compound the problem by increasing the likelihood that immigrant youth will find themselves entangled in the criminal and juvenile justice systems, pushed out of schools, and facing negative immigration consequences. Together, these elements form "the school to deportation pipeline."⁷

Gang allegations involving noncitizen youth are a new key component of the school to deportation pipeline.⁸ Immigration enforcers have escalated raids intended to apprehend immigrant teenagers suspected of gang affiliation.⁹ Meanwhile, the immigration agency¹⁰ has instructe d adjudicators to deny immigration benefits in

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cases involving gang allegations, apparently without due consideration of the reliability or veracity of the suspicions.¹¹ Although gang membership is not a statutory basis for deportation, enforcers can use allegations of gang activity to support discretionary denials of benefits or relief from removal.¹² Moreover, the mere suspicion of gang affiliation, as a practical matter, can lead to the initiation of removal proceedings for noncitizen youth even if they have no criminal history.¹³

Of particular importance, the immigration statute does not define gang membership or gang association,¹⁴ and law enforcement agencies at federal and state levels use different meanings for these terms.¹⁵ Nevertheless, a young person may be branded, often for life,

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with the gang affiliate label based solely upon the assessment of a single school safety officer, immigration agent, or police officer.¹⁶ Frequently these determinations turn on little more than an observation of the young person's clothes, friends, family members, or even the housing complex or neighborhood in which they live.

The upshot is that a young person may be placed in a national network of gang databases based on scant evidence and without notification or opportunity to contest the designation.¹⁷ If that youth is a noncitizen, the gang marker then filters into immigration proceedings where the mere perception of criminality¹⁸ can sound a death knell for the youth's future in the United States.¹⁹ If immigration adjudicators choose to credit the allegations, as many do, devastating consequences are likely to follow. Specifically, the young person will likely be refused the opportunity to post bond, subjected to detention for the pendency of removal proceedings, and, ultimately, denied any immigration benefits that he or she would otherwise be entitled to, resulting in the issuance of a deportation order.²⁰

Although much recent immigration scholarship has focused on the convergence of criminal and immigration law,²¹ few articles have

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examined the particular implications for immigrant youth²² facing the school to deportation pipeline as a result of gang allegations.²³ This Article begins to fill that gap. I show that once suspicions of gang activity enter the picture, they exert nearly outcome-determinative consequences at every stage of the immigration enforcement process—in particular, the arrest, detention, and adjudication stages. In large measure, serious procedural deficiencies in the removal process render these obstacles insurmountable. Moreover, for immigrant juveniles of color, this no-way-out dynamic is compounded by the systematic over-policing of black and Latinx youth²⁴ and the explicit and implicit biases that can influence adjudications.²⁵ Indeed, the focus on gang allegations arose out of a period of overtly racist discourse regarding "criminal aliens" and immigrant children of color. Taken together, these factors suggest that the use of weak gang affiliation criteria to prioritize enforcement,

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and to justify...