ICE Agents Deported Chicago Residents Without Criminal Histories Based on Unsubstantiated Claims of Gang Membership

Federal agents deployed through a special "Gang Surge Operation" have been arresting and deporting people based solely on unreviewed allegations of alienage and gang membership, including juveniles.  Moreover, according to the Chicago data, none of the program's key objectives are being met, an outcome ignored by the agent who reviewed this and indicated satisfaction that U.S. residents merely accused of gang membership and minor crimes were being deported with neither criminal nor immigration hearings.

In 2011 the Department of Homeland Security's (DHS)  Office of Inspector General (OIG) issued a report evaluating how effectively Immigration and Customs Enforcement's (ICE) Enforcement and Removal Operations (ERO) was identifying so-called criminal aliens and ensuring their deportation.  The report was focused on identifying false negatives, that is, whether immigrants with criminal records were not being flagged for deportation.  In reviewing agency actions, the OIG described a program that appeared to be deporting people who had no actual criminal record, if they were "alleged gang members."

Concerned about the due process violations this might occasion, I submitted a request under the Freedom of Information Act for the OIG to release to me the files of the Gang Surge Operation they reviewed.  They did not release these but they did release some spreadsheets and analysis.

The FOIA response I received reveals that ICE was plucking people off the streets of Chicago who had no criminal history, asserting they were breaking laws that should land them in state courts and jails, and then, instead of turning them over to state or local authorities, throwing them out of the country using Stipulated Removal Orders.  Also, most of the alleged violations were inconsistent with the high falutin' mission of attacking dangerous transnational cartels trafficking drugs and weapons, but were for relatively benign events, like "defacing private property," (graffiti) or possessing small amounts of marijuana.

Here is the first part of the record from the screen shot above, the first two columns blacked out are the person's first and last names.  The column with the word "none" is for the codes of previous arrests from the NCIC database.

That is, instead of the police arresting people and then, after they have been convicted and served their sentences, turning them over to ICE, ICE was arresting people, including juveniles, and then deporting them based purely on allegations of crimes and gang membership and without any administrative or judicial review.

Moreover, although a main concern of the OIG research was to learn whether people being released on their own recognizance were committing crimes and not showing up for their hearings, 25 of the 27 who were deported through STIPs had no prior orders of removal.  This was their first time in ICE custody.  The agent reviewing this data:  1) describes a policy to deport alleged gang members who have never been convicted of a crime; ("..discussed that unless there is a conviction, subjects are often released," in other words, discussed the presumption of innocence and how Gang Surge Operation could supersede this;  2) grossly mischaracterizes the program success by collapsing the number of individuals whose records required mandatory detention with those who signed Stipulated Removal orders, thus misleadingly suggesting ICE was deporting recidivist gang members, and overlooking the extent to which ICE was deporting non-criminals without hearings; 3) recommends OIG should no longer review whether those arrested through Gang Surge Operation have records consistent with mandatory detention.  

The analyst writes: "I found that 33 case files indicated that the individual was subject to mandatory detention and 14 files indicated that the custody decision was discretionary."  But then later the analyst states, correctly, "Of these files, 33 were instances where detention was mandatory due to criminal history or that the individual had signed a stipulated removal..." (emphasis added). The more accurate breakdown is that only 7 of the individuals required mandatory detention and 40 did not, among whom 25 nonetheless signed stipulated orders of removal and were deported and another signed a stipulated order of removal and then an immigration judge released him or her.

From OIG Report Referencing Gang Surge Operation (pp. 11-12): 

ICE’s Office of Investigations arrested 1,785 gang members and associates, criminals, and other aliens during its 2009 Gang Surge Operation. The operation was part of the larger, nationwide Operation Community Shield, which targeted transnational street gangs involved in human smuggling and trafficking, narcotics smuggling and distribution, weapons smuggling and arms trafficking, and other crimes. According to ICE’s Office of Investigations, violent transnational criminal street gangs represent a threat to public safety in neighborhoods across the United States. ICE’s Office of Investigations generally recommends that ERO detain gang members to protect the public.

We reviewed 52 gang member arrests during the Gang Surge Operation in 2009. Upon arrest, ICE turned the alien gang members over to ERO custody for removal. For each case, we determined whether ERO overturned ICE’s initial custody recommendations and released the aliens. Of the 52 arrests, 47 (90%) aliens were subject to mandatory detention or ICE detained them because they posed a danger to the public. ICE’s Office of Investigations recommended that ERO release three (6%) aliens because they were juveniles (two) or participating in an ongoing ICE investigation (one). The remaining two (4%) aliens were incarcerated in federalprisons or local jails. We did not identify cases where ERO overturned ICE’s initial custody recommendations. However, we determined that immigration judges later released six of the aliens from detention, and ERO released one into an ATD program.

If you know a little bit about how ICE agents really work, i.e., their own self-acknowledged "ruse operations" in which they impersonate everyone from insurance agents to Mormon missionaries, how they stake out church parking lots where Latinos go and write down license plate numbers, or hire local off-duty sheriffs to use their local law enforcement vehicles to pull people over for pretextual traffic stops and then hand them over to ICE, then this sounds lots of alarms.

The language of a "threat to the community" based on alleged gang membership alone and not criminal convictions is a huge red flag for potential ICE abuses.  (The doctrine of pre-emption is not just a problem in international law.)  I wondered, who exactly are these people ICE is arresting under its Gang Surge Operation and how can they be deported if they don't have any criminal records? And then I filed a FOIA request.

In late October I received a reply.  By coincidence the sample of the nationwide program OIG studied was based on the program in Chicago.  Here's what I learned:

FROM FOIA/PA No 2012-180:
-Among the 52 Chicago residents arrested through the Gang Surge Operation,  27 were deported on the basis of Stipulated Removal Orders (STIPs) -- meaning they signed a document in which they relinquished the right to an immigration hearing -- but only seven had been convicted of any crime, and none of the 27 were charged with the alleged violations supposedly triggering their ICE arrests.  

-Many of the individuals deported through the STIPs have traffic stops or other minor violations associated with their ICE arrests.  No legal status is provided, so it is unclear how many were legal residents, overstayed visas, or had entered without inspection.

In Gang Surge, ICE could, and apparently did, pick up people, including kids, told them to sign something, and shipped them out of the country, even if they had broken no laws.   (One entry says the individual has no criminal history and gives no reason at all for the arrest but lists the individual as a "Latin King.")  In two cases ICE released juveniles after their arrests--there is no information on how long they were held--but an additional two on the list of those who signed STIPS were arrested by ICE supposedly because of "possession of alcohol by a minor" and "possession of liquor by a minor."  One subsequently was "bonded out by an IJ" but the other was deported.

Again, the OIG evaluation focused on whether ICE was releasing criminals, and had no comment at all on these cases of juveniles signing stipulated removal orders.  Also, though one may be a minor and not a juvenile under state law for possession of alcohol, the definition of a juvenile in federal law, which governs deportation proceedings, is anyone under 21.

What is the definition of a federal juvenile delinquent? (top)

A juvenile is a person who has committed an act of delinquency, but has not attained his/her 21st birthday and is sentenced under the Juvenile Justice and Delinquency Prevention Act (JJDPA) (18 U.S.C. 5031 through 5042). In corrections, the term juvenile, juvenile offender, juvenile resident, student, and resident are used interchangeably and are considered synonymous. For more information, visit http://www.ojjdp.gov  (from the Federal Bureau of Prisons)

Most of this information I requested was not released to me and the material I received was highly redacted. I will be filing an appeal and will perhaps learn more about how this program was and is being run.

Emergency Mandamus Petition Filed: Arizona District Court "granting ICE de facto jurisdiction to detain a person with a non-frivolous claim to U.S. citizenship"

Kara Hartzler, Esq. today filed an Emergency Mandamus motion with the Ninth Circuit on behalf of Esteban Tiznado, who has been locked up in solitary confinement by Immigration and Customs Enforcement despite a 2008 Arizona jury finding him "Not Guilty" of Illegal Reentry because of the copious evidence of his U.S. citizenship.

Ms. Hartzler's motion speaks for itself:

On May 30, 2012, Petitioner Esteban Tiznado-Reyna filed a petition for writ of habeas corpus and motion for preliminary injunction to the United States District Court of the District of Arizona. See Exhibit 1, Docket Report for 12-cv-01159-SRB-SPL. In this petition, Mr. Tiznado- Reyna contends that Immigration and Customs Enforcement (“ICE”) lacks jurisdiction to detain him on the basis of his non-frivolous claim to United States Citizenship. Six months later, the district court has failed to rule on the preliminary injunction or Mr. Tiznado-Reyna’s multiple motions to expedite, and the magistrate judge has failed to issue a Report and Recommendation on the habeas petition. The district court’s failure to act effectively abrogates this Court’s decision in Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008), which requires a threshold decision on ICE’s jurisdiction to detain a person with a non-frivolous claim to United States citizenship. On this basis, Mr. Tiznado-Reyna seeks an emergency petition for mandamus and injunctive relief.

The petition documents the numerous urgent habeas motions and filings on which District Court Judge Susan Bolton and Magistrate Judge Steven Logan have failed to rule, despite having the Government's response brief since July 10, 2012. The petition also highlights the many adjournments by the Florence immigration judge Sylvia Arellano, and explains how Mr. Tiznado-Reyna and his family are suffering as a result:

Mr. Tiznado-Reyna has now spent over seven months in immigrationcustody—much of it in solitary confinement. He suffers from depression and anxiety and has difficulty sleeping. Given the numerous continuances by the immigration judge, he has no idea when he will be released from detention. In addition, Mr. Tiznado-Reyna’s mother is partially blind and her health is in serious decline. Prior to his arrest, Mr. Tiznado-Reyna had served as her caretaker, but since his incarceration, she has been without  assistance. Mr. Tiznado-Reyna’s depression and anxiety is severely  heightened by his concern for his mother and his fear that she may pass away while he is in detention and that he will never see her again.

 This and numerous other cases in which the  federal courts are ignoring habeas motions reveal the government's refusal or inability to pay for the Constitutionally required protection of our due process rights.  Right now the backlog of cases is unconscionably pressing down on the bodies and spirits of people challenging the government's right to remove them from their homes and communities.

 If the government will not or cannot spend the money needed to protect our Constitutional rights while holding us in government custody, then it has abrogated its legal authority to lock us up and immediately must release Mr. Tiznado-Reyna and the tens of thousands of others being held amid interminable delays for immigration hearings.