Recent political discourse in the United States has framed immigration as a criminal enforcement issue, likening immigrants to criminals. When it comes to immigration enforcement, there has been a recent focus on using gang databases to target noncitizens for deportation. Law enforcement agencies label an individual as having gang ties and place that individual in a gang database for things as simply as having gang tattoos, frequenting an area notorious for gangs and wearing gang apparel. This designation of gang affiliations does not necessarily require a criminal conviction or other judicial process. Further persecution based on that designation is a violation of the individual’s due process rights under international human rights law.
Under the American Declaration of the Rights and Duties of Man (“the American Declaration”) and the International Covenant on Civil and Political Rights (“ICCPR”), the United States has a responsibility to protect individuals’ due process rights. Article XXVI of the American Declaration states “every person accused of an offense has the right to be given an impartial and public hearing … and not to receive cruel, infamous or punishment.” Article 9 of the ICCPR states, “Anyone arrested or detained on a criminal charge shall be promptly before a judge … and shall be entitled to trial within a reasonable time or to release.” Furthermore, under Article 2 of the ICCPR, the United States is obligated to ensure the rights of all citizens within its territories without distinction of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Finally, under Article 14, paragraph 2, “everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to the law.” The United States is a signatory of the American Declaration, having signed it in 1948. The United States ratified the ICCPR in 1992. As such, the United States is bound to the obligations outlined in both the American Declaration and the ICCPR.
The practice by immigration enforcement officers to use gang databases as targeting tools for deportations of noncitizens violates the individuals’ rights under the both American Declaration and the ICCPR. By using the gang databases as a justification to commence removal proceedings, the United States is presuming that those individuals are guilty of being gang members and of committing gang violence. Whether the noncitizen is in lawful status, under the ICCPR, all individuals in the United States have a right to due process rights to argue against that labeling. Current targeting of non-citizens in gang databases presumes that those noncitizens have gang affiliations. For non-citizens, inclusion in gang databases has meant unwarranted searches and seizures, detention, exorbitant bails, and deportation. Under the Immigration and Nationality Act (“INA”), certain crimes and criminal activity, as stated in Sections 212 and 237, are grounds for removal of a noncitizen. The presumption of gang affiliation based on inclusion in a gang database has meant that in petitions to U.S. Citizenship and Immigration Services and in removal proceedings individuals are required to provide much more evidence to show that he or she does not, in fact, have gang affiliations. Essentially the burden has been inverted for noncitizens, disregarding the presumption of innocence required by Article 14 of the ICCPR.
In the circumstances of removal proceedings, the deportations are taking the place of punishment for the accusation of the gang affiliation. Because removal proceedings have different burdens of proof than a criminal case, the government needs very little evidence to prove the gang affiliation. Currently, inclusion in a gang database is itself being used as evidence of the gang affiliation. Usually gang activity is a criminal charge, and when charged for gang related crimes, the burden of proof is that of beyond a reasonable doubt and the defendant has the right to appointed legal representation. In the immigration setting, the burden of proof is usually that of clear and convincing evidence and the respondent does not have the right to appointed legal representation. For these reasons, respondents in these proceedings are denied their due process rights.
Furthermore, there have already been instances of errors or intentional overreaches, such as inclusion of individuals who would have been a year old at the time of inclusion, when entering an individual in a gang database. In January, a Chicago resident was finally released from detention following a lawsuit that alleged that ICE relied on false reports and that Chicago’s over inclusive gang database incorrectly identified the individual as having gang relations. The probability of including innocent people in gang databases, coupled with the stated motivation of these operations, shows that these practices are discriminatory in nature. Where the gang databases are being used as a tool by the United States to justify immigrants’ punishment through deportation, immigrants are owed their due process rights.