Abstract
Provocative language painting immigrants as dangerous criminals and promises of increased immigration enforcement were cornerstones of Donald j Trump's presidential candidacy. As president, he has maintained this rhetoric and made good on many of his promises by broadening the definition of "criminal conduct" for immigration enforcement purposes, touting a renewed focus on immigrant gangs and cartels, and conducting several nation-wide anti-gang sweeps that placed an estimated 1095 "known" gang members in Immigration and Customs Enforcement (ICE) custody. But the Trump Administration did not create the specter of the criminal immigrant, or "crimmigrant," gang member, nor did it create the detection and removal infrastructure, preloaded with thousands of "gang members." Rather, the Trump Administration inherited the crimmigrant gang-member pipeline from the Obama Administration.
To target noncitizen gang members, the Obama Administration utilized data sharing agreements between the Department of Homeland Security and state and local law enforcement to create immigration priority lists from state gang membership databases. Under these agreements, ICE is authorized to search nearly a thousand databases for removable non citizens. The entries in these databases, however, present significant due process and data accuracy concerns, especially when this data flows unimpeded and uncorroborated from local law enforcement into civil immigration proceedings.
The Fifth Amendment protects noncitizens in civil removal proceedings and affords them the right to a full and fair hearing, along with a reasonable opportunity to present evidence on their own behalf and examine the evidence against them. The use of unsubstantiated gang data in removal proceedings violates these rights, making the hearing fundamentally unfair. Applying the Mathews v. Eldridge test to the use of unsubstantiated gang data in removal proceedings, the current procedures violate a noncitizen's due process rights and increase the risk that otherwise eligible immigrants will be erroneously denied the chance to meaningfully apply for relief and then removed from the country. To comport with the fundamental fairness evidence standard and ensure noncitizens accused of gang membership receive a full and fair hearing, unsubstantiated gang data must either be excluded from removal proceedings, shared with the individual in advance, or corroborated before it is shared with the individual and admitted into evidence in immigration proceedings.
Included in
Criminal Law Commons, Immigration Law Commons, President/Executive Department Commons, Science and Technology Law Commons
