Tuesday, May 31, 2016

Law Would Shine A Light on Gang Lists

By Loyola Immigrant Justice Clinic Co-Director Marissa Montes and Clinical Students Houman Sayaghi, Amber Spring and Megan Venanzi
This op-ed originally appeared on The Daily Journal.

It was a day like any other: a father and son driving together, blasting their favorite music on the way to dinner. Jose Osuna, the director of External Affairs at Homeboy Industries, and his 17-year-old son, Moises Contreras, were pulled over by the police because “their music was too loud.” This kind of stop was common for Jose because he was on a local gang injunction. However, this stop was different because the cops decided to categorize Moises as a gang member because of his father. A few months later, Moises died when he was caught in the crossfire of a race-related shooting.

While Jose was involved with a gang at the time, Moises constantly berated his dad for being part of one. Moises had bigger dreams of joining the military or opening his own apparel store. But Moises’ wrongful inclusion on the gang injunction tarnished his memory, labeling him as something he never wanted to be. When Jose tried to apply for state assistance to pay for Moises’ funeral, he was turned away because his son was a named gang member. Two months later, after pleading to various agencies and political figures as to his son’s innocence, Jose was able to get Moises’ name removed from the injunction and receive aid.

The Problem: The Database

Jose’s story took place in Los Angeles County, but countless stories just like his are happening all over the state. While gang injunctions were far from perfect, gang databases are more harmful because they operate without transparency. Injunctions are public record, but gang databases are extremely secretive and inaccessible to almost anybody outside of law enforcement. The California Department of Justice maintains a database (CalGang) of California gangs, gang members and other relevant information. Law enforcement agencies actively update the database, which has devastating criminal and immigration consequences for the individuals whose names are listed.

Unlike required personal service with injunctions, the process to be placed on a gang database is covert and ambiguous. Most often, individuals are unaware of the database’s existence and whether or not they are on it. According to CalGang's Advisory Committee, a name may be added to the database based on nothing more than information that a “subject has been seen frequenting gang areas” and “has been seen affiliating with documented gang members.” For instance, family members of those in gang databases, or those who are forced to live in impoverished, crime-heavy neighborhoods, are often wrongfully classified — just as Moises was for simply spending time with his father.

Through our work with Homeboy Industries, we have noticed that gang classification through a database has farther-reaching consequences, beyond that of not being allowed to congregate in certain areas or being denied access to social services. Those on databases can be subject to higher criminal consequences when arrested, and even deportation. Currently, those with gang affiliations, even if only alleged, become an enforcement priority for Immigration and Customs Enforcement. ICE has gained access to these databases and uses the information to target and classify unknowing immigrants as gang members. The looming possibility of inclusion in a gang database leaves many juveniles and young adults afraid to apply for immigration relief.

For instance, Deferred Action for Childhood Arrivals (DACA), a form of relief that most prevalently helps juveniles, specifically asks about possible gang membership. Our client, Jacob, was a 16-year-old applying for DACA. He was never arrested or detained for gang activity and had no idea his name was in a database. Although the law requires juveniles and their guardians be notified once their names are listed in a gang database, Jacob never received such notice. Yet, just before filing his application for DACA it was revealed by a law enforcement source that his named appeared in a gang database. Besides the database, there was no other record of Jacob ever being a gang member, yet, for ICE placement in the CalGang database would be enough to subject him to removal.

Finding a solution: AB 2298

Currently, there is no indication that a process exists to review the accuracy of the database, to purge persons who are inadvertently included or who are no longer “active members.” Therefore, persons listed erroneously are left without recourse. Law enforcement refuses to make such information public citing that the database is meant to be used for intelligence and not enforcement purposes. We, even as attorney of record, only discovered Jacob’s inclusion on a gang database due to the willingness of an officer to bend the rules.

Since statistically most people in the CalGang database are between 20-24 years old, with the youngest member listed at 10, the consequences related to inclusion overwhelmingly fall on youth, who should not have to worry about being separated from their families. For the sake of minors like Jacob, and families like Jose’s, it is necessary for there to be transparency and implementation of a removal process from the CalGang database.

Currently, AB 2298, which is to be voted on this Friday by the Appropriations Committee of the California State Assembly, would extend required notice to adults, provide an opportunity to contest inclusion in a database and would require the State Department to provide annual reporting on gang databases. Though AB 2298 would likely not solve all the issues surrounding databases, it would at least afford people like Moises and Jacob the knowledge that information was collected against them and grant them the ability to defend themselves from false allegations that can lead to greater legal and social consequences. We hope AB 2298 passes in order to shine some light on what is currently a very dark process.

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