SAN FRANCISCO (CN) — The U.S. government will no longer use uncorroborated claims of gang involvement to ship immigrant minors to far-off detention centers or deny them special immigration benefits under the terms of a proposed settlement filed Thursday.
“We think it’s a really important settlement because it protects immigrant children from being picked up off the street based on unsubstantiated allegations of gang affiliation and placed in detention without hearings,” said plaintiffs’ attorney William Freeman of the American Civil Liberties Union of Northern California.
The proposed deal follows three years of litigation in a class action filed in 2017 by three immigrant teenagers. The youngsters came to the U.S. as unaccompanied minors, were detained and released to sponsors in the U.S. and then re-arrested on suspicion of “gang affiliation.” All three teenagers were sent to one of the nation’s two high-security detention centers for immigrant minors in Virginia and California.
One of the lead plaintiffs, who goes by the initials A.H., came to the U.S. from Honduras at age 15 in 2015 fleeing an abusive father. He was detained and placed in an Office of Refugee Resettlement facility in New York before being released to his mother who lived in Long Island, New York.
In June 2017, two plainclothes ICE officers arrested him on the street and shipped him across the country to Yolo County Detention Center near Sacramento without ever notifying his mother or attorneys.
“It wasn’t until he had been locked up there that anyone who cared about him knew where he was,” Freeman said in a phone interview Friday.
In November 2017, U.S. District Judge Vince Chhabria ordered the government to stop sending immigrant minors to far-away detention centers without holding a hearing first, finding the practice violated their due process rights.
Since that ruling took effect, Freeman said the government lost over 90% of about 35 hearings on its requests to re-arrest sponsored unaccompanied minors because the government’s allegations of gang involvement were “flimsy or nonexistent,” often based on uncorroborated testimony of law enforcement officers and second or third-hand hearsay.
Since losing most of those hearings, Freeman said the government has virtually halted the practice of re-arresting minors based on purported gang affiliations.
Under the terms of the proposed settlement filed Thursday, Immigration and Customs Enforcement must provide 48 hours notice before re-arresting a sponsored unaccompanied minor for suspected gang affiliation. The government must also hold hearings within 10 days to determine if there is probable cause to detain the minor.
The deal further requires that hearings be held at an immigration court closest to where the minor was arrested unless the minor chooses otherwise. Minors can decide within five days if hearings should be held at the court closest to where they were arrested, are being detained or where they reside.
During hearings, ICE will bear the burden of showing that circumstances have changed since the minor was released and that the minor now poses a flight risk or danger to the community.
The settlement will apply to all unaccompanied immigrant minors who were previously detained, released to a sponsor in the U.S. and will be re-arrested based on whole or in part for purported gang affiliation.
The agreement also prevents the government from using unsubstantiated claims of gang affiliation to deny minors immigration benefits, including asylum, special immigrant juvenile status, nonimmigrant status as a victim of crime or human trafficking, a waiver of inadmissibility or adjustment of status.
While litigating the case, Freeman said attorneys discovered the government was using “flimsy gang allegations” to override the decisions of state court judges who found minors eligible for special immigrant juvenile status, which allows children to seek legal permanent residency in the U.S.
“We found the government was hijacking that process and directing its immigration authorities to disregard the state court findings on the basis that the state court hadn’t considered these flimsy gang allegations,” Freeman said.
That practice will come to an end under the terms of the proposed settlement, which requires the government to provide evidence of any alleged gang involvement and to give immigrant minors an opportunity to contest those allegations through a fair process.
A hearing on the motion for preliminary approval of the settlement has not yet been scheduled, but Freeman said he expects the hearing will be held sometime in October.
The U.S. Department of Justice and U.S. Citizenship and Immigration Services did not immediately return emails seeking comment Friday.