When someone is detained by Immigration and Customs Enforcement (“ICE”) and placed into removal proceedings, they are generally entitled to release on bond unless they are subject to mandatory detention on criminal or terrorist grounds, or if they are considered “arriving aliens”. However, an immigration bond may also be denied if it is determined that the person presents a danger to the community, whether or not that person has ever been convicted of a crime. Evidence of a person being involved in gang activity is often something that ICE officials and Immigration Judges consider makes an individual a danger to the community.
This begs the question, what is considered gang activity for immigration purposes?
Due to the fact that most ICE detainees are held under administrative detention, individuals seeking an immigration bond are not entitled to the same evidentiary standards of a criminal proceeding, which gives immigration authorities a great deal of discretion in bond determinations. In practice, ICE officers and Immigration Judges have a very broad definition of gang activity. A person does not have to be charged of a gang-related crime or any crime at all. Evidence of simply affiliating with suspected gang members, or having tattoos believed to be gang-related, is oftentimes sufficient. Recently, we saw a police report in a criminal case used as evidence of involvement in gang activity. In this case, though felony criminal charges, which included Soliciting Gang Activity and Criminal Gang Activity Enhancement, were voluntarily dismissed by the District Attorney’s Office for lack of evidence, the police investigator’s comments of potential gang activity were sufficient to find this individual was a danger to the community.
With the growth of transnational gangs and fear of immigrant gangs spreading across the United States, we can expect that ICE officers and Immigration Judges will continue to implement a broad definition of what constitutes gang activity when determining whether or not an immigration bond is appropriate. While this broad definition allows immigration officials to cast a wide net to detain noncitizens who truly present a danger to the community, there are many individuals who are unjustly detained because of a hunch that they are in some way affiliated with a gang.
This arbitrary exercise of power often has a detrimental impact on ICE detainees. Remaining in custody makes it much more difficult for a person to adequately defend themselves during removal proceedings for various reasons. For example, a detained person has limited communication with friends, family and legal counsel, and is unable to personally gather the supporting documents they need to properly mount their removal defense. Also, detainee cases tend to make their way through the immigration courts much quicker than non-detainees, which gives an individual less time to prepare their removal defense.
While it is important to track down and detain noncitizens who are gang members and who truly present a danger to the community, there is an inherent risk that immigration authorities will wrongfully detain an individual on a purported claim they are involved in gang activity when there is little or no evidence to support such a claim.
H. Esteban Diaz is an Associate Attorney at the Raleigh, NC office of Fayad Law, P.C. If you need representation for any type of immigration or deportation matter in North Carolina, Virginia, or Washington, D.C., please contact the firm.
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