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Mislabeled: Allegations of Gang Membership and Their Immigration Consequences, University of California Irvine School of Law, 2016

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Immigrant Rights Clinic

Allegations	of	Gang	Membership	and		
Their	Immigration	Consequences





Allegations	of	Gang	Membership	and	
Their	Immigration	Consequences	



Authors:	Sean	Garcia-Leys,	Meigan	Thompson,	Christyn	Richardson	
Editors:	Sameer	Ashar	and	Annie	Lai	
Photos	courtesy	of	Salvador	“Pocho”	Sanchez	and	Homeboy	Industries	
Infographics	by	Oswaldo	Farias	and	Abraham	Medina	of	Santa	Ana	Boys	and	Men	of	Color	
Thanks	to	the	generous	help	and	support	of	Amelia	Alvarez,	Fawn	Bekham,	Caitlin	Sanderson,	
Erika	Pinheiro,	Joshua	Green,	Alexis	Nava	Teodoro,	Gabby	Hernandez,	Carolyn	Torres,	Ana	Karen	
Rosales,	Karen	Huerta,	and	Patricia	Tiempos	
UCI	School	of	Law	Immigrant	Rights	Clinic	
P.O.	Box	5479	
Irvine,	CA	92616-5479	
Phone:	(949)	824-9646	
Fax:	(949)	824-2747	
Administrator:	Debi	Gloria	
April	2016	





I.	INTRODUCTION	..............................................................................................................	1	
II.	GANG	ALLEGATIONS	....................................................................................................	5	
SOURCES	OF	GANG	ALLEGATIONS	..................................................................	5	
RECORDING	OF	GANG	ALLEGATIONS	............................................................	8	
IMMIGRATION	DETENTION	...........................................................................	14	
IV.	POLICY	RECOMMENDATIONS	..............................................................................	20	
V.	ENDNOTES	....................................................................................................................	21	





Gang	allegations	 made	 by	law	enforcement	agents	frequently	 prevent	 undocumented	immigrants	
from	gaining	legal	status	for	which	they	would	be	otherwise	eligible.	These	allegations,	made	without	any	
of	the	hallmarks	of	due	process,	also	increase	the	likelihood	an	undocumented	immigrant	will	be	prioritized	
for	 deportation	 or	 held	 in	 immigration	 detention.	 Policy	 makers,	 elected	 officials,	 and	 even	 the	 law	
enforcement	agents	who	make	these	gang	allegations	are	often	unaware	of	the	immigration	effects	of	these	
This	 report	 documents	 the	 findings	 of	 the	 UC	 Irvine	 School	 of	 Law	 Immigrant	 Rights	 Clinic	 (IRC)	
based	 on	 the	 IRC’s	 legal	 representation	 of	 affected	 immigrants,	 collaboration	 with	 community	
organizations	 and	 other	 legal	 service	 providers,	 interviews	 with	 law	 enforcement	 agents,	 and	 review	 of	
scholarly	 literature.	 First,	 the	 IRC	 found	 that	 gang	 allegations	 have	 a	 high	 risk	 of	 error	 as	 they	 are	
primarily	made	based	on	the	subjective	beliefs	of	law	enforcement	agents	in	the	field	and	are	usually	made	
without	 any	 connection	 to	 a	 specific	 crime.	 This	 high	 risk	 of	 error	 is	 corroborated	 by	 the	 fact	 that	 these	
allegations	are	overwhelmingly	made	against	African-Americans	and	Latinos.	Second,	the	IRC	learned	that	
these	 allegations	 are	 stored	 in	 computer	 databases	 that	 are	 networked	 to	 other	 agencies,	 including	
Immigrations	and	Customs	Enforcement	(ICE)	and	the	Department	of	Homeland	Security	(DHS).	Third,	the	
IRC	 learned	 that	 these	 allegations	 negatively	 affect	 the	 eligibility	 of	 undocumented	 immigrants	 for	
Deferred	 Action	 for	 Childhood	 Arrivals	 (DACA)	 and	 other	 forms	 of	 immigration	 relief.	 Fourth,	 the	 IRC	
learned	that	gang	allegations	also	affect	the	treatment	of	immigrants	held	in	immigration	detention.	
Considering	these	findings,	the	IRC	recommends	that	law	enforcement	agencies	be	required	to:	(1)	
provide	 notice	 to	 every	 person	 who	 law	 enforcement	 agents	 document	 as	 a	 gang	 member,	 (2)	 improve	
existing	 notice	 practices,	 and	 (3)	 offer	 neutral	 review	 hearings	 where	 people	 erroneously	 documented	 as	
gang	members	may	contest	that	documentation.	By	providing	these	basic	hallmarks	of	due	process	to	those	
law	enforcement	agents	suspect	of	gang	membership,	the	risk	of	unintended	immigration	harms	to	people	
erroneously	documented	as	gang	members	can	be	greatly	reduced.	
Across	 California,	 law	 enforcement	 officers	
routinely	 document	 people	 as	 gang	 members	
based	 not	 only	 on	 evidence	 presented	 in	 court,	
but	 based	 on	 the	 subjective	 beliefs	 of	 officers	
interacting	with	people	in	the	field.1		
	 California’s	statewide	gang	database,	CalGang,	
currently	holds	documentation	on	approximately	
150,000	 Californians.2	Statistics	 show	 that	 race,	
gender	and	age	significantly	determine	who	ends	
up	in	CalGang.	One	out	of	every	40	boys	and	men	
of	 color	 between	 the	 ages	 of	 15	 and	 34	 living	 in	
California	 is	 documented	 in	 CalGang	 as	 a	 gang	

	 Law	enforcement	officers	make	allegations	of	
gang	 membership	 with	 little	 oversight	 or	 due	
process. 4 	This	 is	 because	 documentation	 is	
collected	primarily	for	investigative	purposes	and	
is	 not	 used	 by	 prosecutors	 as	 direct	 evidence	 in	
court.	 In	 many	 instances,	 however,	 this	
documentation	results	in	significant	harms	to	the	
people	 against	 whom	 the	 allegations	 are	 made.5	
One	area	where	this	has	been	particularly	true	is	
in	 the	 immigration	 context,	 where	 allegations	 of	
gang	 membership	 can	 result	 in	 serious	
immigration	consequences.6		


	 The	 Immigrant	 Rights	 Clinic	 at	 UC	 Irvine	
School	 of	 Law	 (IRC)	 provides	 pro	 bono	 legal	
services	 to	 individuals	 and	 organizations	 on	
critical	issues	affecting	low-income	immigrants	in	
Orange	County.		
	 In	 pursuing	 immigration	 relief	 for	
undocumented	 clients	 who	 are	 erroneously	
alleged	 of	 gang	 membership,	 the	 IRC	 has	
witnessed	 how	 existing	 gang	 practices	 create	
unintended	 barriers	 to	 immigration	 relief.	 We	
have	 seen	 our	 clients	 endure	 prolonged	 stays	 in	
detention	 when	 detention	 was	 otherwise	
unnecessary,	 lose	 eligibility	 for	 relief	 programs	
such	 as	 deferred	 action,	 and	 generally	 become	 a	
priority	 for	 deportation	 in	 immigration	
For	 people	 facing	 erroneous	 allegations	 of	
gang	 membership,	 these	 obstacles	 lead	 to	 lifealtering	 consequences,	 uprooting	 them	 from	
many	 familial	 and	 community	 relationships	 with	
friends	and	loved	ones,	places	of	worship,	higher	
learning	institutions,	and	employers.		
Because	 access	 to	 jobs	 is	 a	 vital	 need	 for	
people	exiting	gangs,	creating	additional	barriers	
to	 forms	 of	 immigration	 relief	 that	 provide	 work	
authorization	 is	 counterproductive	 to	 the	 public	
safety	 goal	 of	 encouraging	 people	 to	 leave	 gangs.	

And	 for	 someone	 who	 was	 never	 a	 member	 of	 a	
gang,	the	barriers	to	immigration	relief	created	by	
erroneous	gang	allegations	are	plainly	unfair.	
This	report	will	share	what	we	have	found	in	
our	representation	of	undocumented	immigrants	
facing	erroneous	allegations	of	gang	membership	
and	will	propose	policy	recommendations	to	help	
protect	against	future	erroneous	gang	allegations.		
We	 begin	 with	 an	 overview	 of	 the	 processes	
that	 California	 law	 enforcement	 agencies	 use	 to	
make	 gang	 member	 allegations,	 including	 the	
ways	 in	 which	 those	 allegations	 are	 stored	 and	
accessed.	 Next,	 we	 illustrate	 how	 these	 gang	
allegations	can	harm	people	seeking	immigration	
relief	through	prosecutorial	discretion	or	who	are	
detained	 during	 immigration	 deportation	
Finally,	 we	 provide	 recommendations	 for	
policy	changes	to	mitigate	these	harms,	including	
the	 guarantee	 of	 notice	 and	 an	 opportunity	 to	
contest	 the	 allegations	 against	 them.	 Throughout	
the	report,	we	have	included	stories	of	IRC	clients	
that	 put	 a	 human	 face	 to	 the	 need	 for	 reform	 of	
California’s	 gang	 documentation	 practices.	 In	
these	 stories,	 the	 names	 of	 clients	 have	 been	
changed	to	protect	confidentiality.	









California	law	enforcement	agencies	use	multiple	processes	to	document	
alleged	 gang	 membership.	 In	 criminal	 justice	 proceedings,	 law	 enforcement	
officers	and	local	prosecutors	allege	gang	membership	through	administrative	
procedures	 like	 arrest	 documents	 and	 plea	 negotiations.	 Formal	 court	 orders,	
such	as	civil	gang	injunctions,	present	another	way	that	people	are	documented	
as	 gang	 members.	 Typically,	 however,	 people	 are	 documented	 as	 alleged	 gang	
members	 through	 routine	 field	 patrols	 of	 law	 enforcement	 officers.	 While	 due	
process	protections	apply	to	some	of	these	sources,	not	all	of	them	are	subject	to	
regulation	 or	 oversight	 outside	 of	 the	 law	 enforcement	 agency	 itself.	 Law	
enforcement	agencies	also	lack	regulation	and	independent	oversight	regarding	
how	 the	 documentation	 of	 alleged	 gang	 membership	 is	 stored	 and	 shared	
among	 government	 offices.	 Because	 of	 the	 lack	 of	 transparency	 and	 public	
accountability,	these	practices	are	not	well	documented.	



gang	 crimes	 or	 criminal	 contempt	 charges	 for	
violations	 of	 a	 gang	 injunction.10	However,	 other	
types	 of	 gang	 allegations	 arising	 from	 criminal	
proceedings	 do	 not	 have	 to	 be	 proven	 in	 court.	
For	 example,	 law	 enforcement	 officers	 can	
document	gang	membership	using	evidence	from	
arrest	reports	and	search	documents.11	
There	 are	 instances	 when	 gang	 membership	
is	 shown	 relatively	 clearly	 by	 the	 facts	 alleged	 in	
an	arrest	report	such	as	when	a	defendant	shouts	
the	 name	 of	 his	 or	 her	 affiliated	 gang	 while	
perpetrating	 violence	 against	 a	 rival	 gang	
member.	 But	 the	 facts	 are	 not	 usually	 so	
straightforward.	A	law	enforcement	officer	might	
also	 allege	 gang	 membership	 in	 an	 instance	
where	the	officer	suspects	the	criminal	defendant	
committed	 a	 domestic	 battery	 in	 retaliation	 for	
his	 victim’s	 romantic	 affair	 with	 a	 rival	 gang	
member.	In	a	situation	like	this,	a	prosecutor	may	
charge	the	crime	as	a	gang	crime	based	solely	on	
the	suspicions	of	investigating	officers.		
Similarly,	 alleged	 gang	 indicia	 discovered	 in	
searches	 such	 as	 sports	 gear	 associated	 with	 a	
local	 gang,	 or	 even	 gang	 graffiti,	 may	 not	 be	
evidence	of	gang	membership.	Indicia	may	be	old	

In	California,	state	law	enforcement	agencies	

allege	 gang	 membership	 through	 at	 least	 three	
distinct	 processes:	 (1)	 criminal	 justice	
proceedings,7	(2)	 civil	 gang	 injunctions,	8	and	 (3)	
field	contacts	by	law	enforcement	officers.9		
Criminal	Justice	Proceedings	
	 There	 are	 several	 ways	 a	 person	 can	 be	
identified	as	an	alleged	gang	member	in	criminal	
justice	 proceedings.	 Prosecutors	 or	 law	
enforcement	agents	may	allege	gang	membership	
when	 charging	 someone	 with	 a	 crime,	 in	 arrest	
reports,	 or	 in	 documentation	 of	 searches	
conducted	 during	 an	 investigation.	 Alternatively,	
a	 defendant	 may	 admit	 to	 gang	 membership	 as	
part	of	a	plea	deal,	a	condition	for	probation,	or	in	
jail	or	prison	intake	interviews.	
	 Some	 types	 of	 gang	 allegations	 arising	 from	
criminal	 proceedings	 require	 law	 enforcement	
officers	to	prove	them	in	court.	Examples	of	such	
allegations	 include	 sentence	 enhancements	 for	


or	belong	to	the	alleged	gang	member’s	friends	or	
family,	or	it	may	simply	be	an	expression	of	urban	
culture	 of	 a	 type	 that	 is	 commonly	 mistaken	 for	
gang	indicia.	
	 In	 addition	 to	 court	 documents,	 arrest	
documents,	 and	 search	 documents,	 there	 are	
other	 points	 in	 criminal	 proceedings	 where	 law	
enforcement	 officers	 document	 allegations	 of	
gang	 membership.	 During	 plea	 negotiations,	
prosecutors	 may	 offer	 to	 reduce	 a	 defendant’s	
charges	 in	 exchange	 for	 a	 written	 admission	 of	
gang	 membership	 or	 a	 guilty	 plea	 for	 a	 charge	
that	demonstrates	gang	membership.	Defendants	
may	 find	 it	 in	 their	 best	 interests	 to	 admit	 gang	

membership	 in	 exchange	 for	 reduced	 sentences	
or	 immediate	 release	 from	 custody,	 even	 if	 they	
are	not	active	gang	members.	
If	 a	 person	 is	 convicted	 and	 incarcerated,	 jail	
and	 prison	 intake	 interviews	 may	 include	
questions	 about	 gang	 membership. 12 	In	 these	
interviews,	 a	 person	 may	 feel	 coerced	 to	 admit	
gang	 membership	 out	 of	 fear	 of	 entering	 jail	 or	
prison	 without	 the	 protection	 of	 a	 gang,	 even	 if	
that	 admission	 is	 not	 true.	 Admissions	 of	 gang	
membership	 during	 an	 intake	 interview	 may	 be	
used	later	as	evidence	of	gang	membership.13	If	a	
person	joins	a	prison	gang	for	the	first	time	while	
incarcerated	and	is	only	active	in	the	gang	during	

Sergio	is	an	undocumented	childhood	arrival	from	Mexico	who	endured	a	lengthy	immigration	
detention	as	a	result	of	erroneous	gang	allegations.	He	is	currently	seeking	prosecutorial	discretion.	
Sergio’s	parents	brought	him	from	Mexico	when	he	was	a	child.	Sergio	is	now	in	his	twenties	and	
has	lived	most	of	his	life	in	a	single	neighborhood.	He	is	not	and	has	never	been	a	gang	member.	With	
the	exception	of	a	single	arrest	for	driving	without	a	license,	Sergio	has	never	been	arrested	or	charged	
with	 a	crime.	 He	has	 a	 U.S.	citizen	 daughter	and,	 since	his	own	father’s	 deportation,	has	been	a	father	
figure	to	his	younger	siblings.	
After	being	arrested	and	booked	for	driving	without	a	license,	Sergio	should	have	been	released	
but	 was	instead	 held	by	police	in	violation	of	California’s	Trust	 Act	and	transferred	 to	an	immigration	
detention	facility.	Once	Sergio	settled	in	at	the	detention	facility,	he	realized	that	all	the	other	detainees	
were	transferred	there	as	a	result	of	substantially	more	serious	criminal	convictions.	He	was	also	given	
a	red	uniform	to	wear.	Red	uniforms	are	used	to	signify	detainees	 who	 pose	a	 greater	 threat	 to	safety	
than	detainees	in	orange	uniforms.	
Sergio	wrote	a	letter	to	an	Adelanto	officer	asking	why	he	was	detained.	The	officer	told	Sergio	
that	it	was	because	he	was	a	documented	gang	 member.	 When	Sergio	objected	that	he	was	 not	a	 gang	
member,	the	officer	told	Sergio	that	ICE	believes	Sergio	is	a	member	of	the	Hillside	gang	because	he	has	
“H.S.”	 tattooed	 above	 one	 eyebrow.	 “H.S.”	 is	 Sergio’s	 daughter’s	 initials.	 There	 is	 no	 Hillside	 Gang	
anywhere	 in	 Sergio’s	 county.	 A	 Google	 search	 of	 “Hillside	 gang”	 reveals	 two	 fictional	 gangs	 --	 Hillside	
Trece	from	the	movie	Training	Day	and	Hillside	Posse	from	the	video	game	Grand	Theft	Auto.	There	is	
also	a	small,	little	known	gang	named	Hillside	Rivas,	but	they	are	in	another	county.	
Despite	 gang	 allegations,	 Sergio	 is	 currently	 out	 of	 detention	on	 bond	 and	 is	 petitioning	 for	
prosecutorial	 discretion.	 His	 local	 sheriff’s	 department	 has	 admitted	 they	 made	 a	 mistake	 when	 they	
turned	Sergio	over	to	ICE.	His	case	has	received	a	great	deal	of	positive	attention,	including	several	news	
articles	 and	 a	 resolution	 from	 his	 local	 city	 council	 supporting	 his	 application	 for	 prosecutorial	
discretion.	However,	Sergio’s	alleged	gang	membership	remains	an	issue	in	immigration	proceedings.		


incarceration,	 that	 person	 will	 remain	
documented	as	a	gang	member	even	after	release.	
The	 final	 way	 law	 enforcement	 alleges	 gang	
membership	 using	 criminal	 procedures	 is	
through	 gang	 registries	 similar	 to	 sex	 offender	
registries.		Any	defendant	who	was	convicted	of	a	
crime	with	a	gang	enhancement	and	who	finished	
serving	 his	 or	 her	 sentence,	 must	 register	 as	 a	
gang	 member	 with	 local	 law	 enforcement	 for	 5	
years	 after	 release,	 even	 if	 that	 person	 is	 no	
longer	 a	 gang	 member	 or	 disagrees	 they	 were	
ever	a	gang	member.14		
Civil	Gang	Injunctions	
	 The	 second	 process	 through	 which	 law	
enforcement	 agencies	 make	 gang	 allegations	 is	
through	 civil	 gang	 injunctions.	 Gang	 Injunctions	
are	 civil	 suits	 brought	 by	 city	 or	 county	
prosecutors	 against	 an	 alleged	 gang	 for	 the	
purpose	 of	 making	 it	 easier	 for	 law	 enforcement	
officers	 to	 stop	 and	 arrest	 suspected	 gang	
members	in	a	designated	“safety	zone.”15		
	 Gang	 Injunctions	 facilitate	 law	 enforcement	
officers’	 ability	 to	 allege	 gang	 membership.	 A	
gang	 injunction	 will	 either	 name	 alleged	 gang	
members	individually	as	parties	to	the	injunction	
or	 name	 the	 entire	 gang	 as	 a	 party	 with	 a	 list	 of	
people	 prosecutors	 allege	 are	 active	 members	 of	
the	 gang. 16 	Only	 recently	 have	 courts	 begun	
holding	 hearings	 to	 determine	 whether	 each	
person	 named	 as	 a	 gang	 member	 is	 actually	 an	
active	participant	in	the	gang.17	Because	these	are	
civil	 suits,	 people	 have	 no	 right	 to	 a	 courtappointed	 attorney	 in	 these	 hearings	 and	 rarely	
come	 forward	 to	 challenge	 their	 inclusion	 in	 an	
injunction	unless	charged	with	criminal	contempt	
for	violating	the	injunction.18	Once	a	court	orders	
an	 injunction,	 law	 enforcement	 officers	 may	
subject	 new	 people	 to	 the	 injunction	 merely	 by	
serving	them	notice.19	

Field	Contacts	by	Law	Enforcement	Officers	
	 The	 third	 method	 law	 enforcement	 agencies	
use	 to	 allege	 gang	 membership,	 field	 contacts,	 is	
by	 far	 the	 most	 common	 and	 usually	 happens	
without	 any	 court	 oversight	 or	 nexus	 with	 a	
specific	 crime.20	While	 law	 enforcement	 officers	
sometimes	 document	 people	 as	 gang	 members	
based	on	evidence	obtained	as	a	result	of	targeted	
investigations,	 documentation	 is	 more	 often	
based	 on	 untargeted	 consensual	 or	 investigatory	
stops	in	the	field.21		
	 In	targeted	investigations	against	a	gang	or	an	
individual,	 law	 enforcement	 agencies	 may	
conduct	warranted	searches,	conduct	undercover	
informants. 22 	Based	 on	 the	 results	 of	 these	
investigatory	 actions,	 law	 enforcement	 agencies	
can	then	allege	gang	membership	not	only	against	
the	 targeted	 person	 under	 investigation,	 but	
against	anyone	else	they	come	to	believe	is	a	gang	
member	 during	 the	 course	 of	 their	
investigation. 23 	And	 during	 the	 more	 common	
untargeted	 consensual	 or	 investigatory	 field	
stops,	gang	allegations	may	be	made	on	evidence	
as	 slight	 as	 wearing	 a	 baggy	 white	 t-shirt	 and	
standing	in	the	courtyard	of	one's	apartment	if	an	
officer	 believes	 that	 indicates	 gang	 clothing	 and	
presence	in	a	gang	area.24		
Local	 law	 enforcement	 agencies	 are	 not	
bound	by	any	legal	limits	or	state	oversight	as	to	
who	they	can	document	as	gang	members	unless	
that	 documentation	 is	 entered	 into	 a	 gang	
database	 shared	 with	 other	 agencies	 or	 a	
database	 subject	 to	 federal	 privacy	 rules.25	If	 a	
documentation	 into	 CalGang,	 the	 allegation	 of	
gang	 membership	 must	 be	 justified	 by	 at	 least	
two	 of	 nine	 criteria.26	However,	 these	 criteria	 are	
as	easily	met	as	“seen	affiliating	with	documented	
gang	members,"	“seen	frequenting	gang	areas,”	or	
"seen	 wearing	 gang	 dress." 27 	Although	 law	


documentation	 is	 collected	 only	 in	 stops	 that	 are	
consensual	or	supported	by	reasonable	suspicion,	
alleged	 gang	 members	 and	 defense	 attorneys	
have	 found	 that	 the	 consensual	 stops	 are	 rarely	
consensual	and	the	investigatory	stops	are	rarely	
based	on	objectively	reasonable	suspicion.28	

	 If	 the	 documentation	 is	 to	 be	 shared	 outside	
the	agency,	the	documentation	may	be	subject	to	
laws	 governing	 the	 sharing	 of	 confidential	
investigatory	 documents	 and	 the	 use	 of	 shared	
gang	 databases.36	However,	 these	 laws	 do	 not	
prevent	law	enforcement	agents	from	sharing	this	
gang	 documentation	 directly	 with	 other	 law	
enforcement	 agencies	 when	 there	 is	 a	 right	 to	
know	 and	 a	 need	 to	 know. 37 	This	 includes	
providing	 documentation	 to	 Immigration	 and	
Customs	Enforcement	(ICE).38	Agencies	have	also	
been	 accused	 of	 unlawfully	 sharing	 this	
documentation	 directly	 with	 housing	 authorities	
and	employers.39	
	 In	 addition	 to	 providing	 gang	 documentation	
directly	 to	 other	 law	 enforcement	 agencies	 upon	
request,	gang	documentation	is	made	available	to	
other	 agencies	 through	 shared	 gang	 databases.40	
Beginning	 in	 the	 1990s,	 the	 Los	 Angeles	 County	
Sheriff	 began	 keeping	 gang	 documentation	 in	 an	
electronic	 database	 called	 the	 Gang	 Reporting	
Evaluation	 and	 Tracking	 (G.R.E.A.T.)	 database.41	
This	 database	 was	 replicated	 by	 other	 law	
enforcement	agencies	across	the	state,	which	was	
then	 networked	 together	 as	 the	 CalGang	
	 CalGang	 runs	 on	 a	 privately	 developed	
software	 called	 GangNet	 which	 is	 also	 used	 by	
other	 law	 enforcement	 agencies	 across	 the	
country.43	Through	 GangNet,	 a	 database	 in	 one	
jurisdiction	 can	 be	 searched	 by	 a	 law	
enforcement	 agency	 in	 another.	 The	 databases	
are	 networked	 together	 so	 that	 a	 law	
enforcement	 agent	 with	 access	 to	 any	 GangNet	
database	can	also	search	the	contents	of	the	other	
GangNet	 databases. 44 	For	 example,	 a	 law	
enforcement	 agent	 with	 access	 to	 ICEGangs,	 the	
GangNet	 database	 managed	 by	 ICE,	 can	 also	
search	CalGang.45		 	
	 Unlike	 local	 law	 enforcement	 agencies	 use	 of	
in-house	 databases	 for	 investigatory	 purposes,	
there	 are	 some	 restrictions	 to	 the	 use	 of	
CalGang.46			Juveniles		and		their		parents		must		be		

	 Allegations	 of	 gang	 membership	 made	 in	
consensual	 and	 investigatory	 stops	 are	
documented	 in	 what	 are	 commonly	 called	 field	
investigation	 or	 field	 interview	 cards	 (F.I.	 cards)	
or	 Street	 Terrorism	 Enforcement	 and	 Protection	
notices	(S.T.E.P.	notices).29		
	 F.I.	cards	are	typically	index	cards	that	officers	
fill	 out	 after	 consensual	 or	 investigatory	 stops.30	
Officers	fill	out	F.I.	cards	for	many	reasons	besides	
gang	 documentation,	 but	 many	 law	 enforcement	
agencies’	 blank	F.I.	 cards	 include	 check	 boxes	 for	
alleging	gang	membership.31		
S.T.E.P.	notices	are	typically	letter-sized	forms	
that	are	specifically	used	to	document	allegations	
of	 gang	 membership	 and	 include	 more	 details	
related	 to	 gang	 membership	 than	 F.I.	 cards.32	
Suspects	may	be	asked	to	sign	a	S.T.E.P.	notice	or	
give	 consent	 to	 be	 photographed	 when	 served	
with	 the	 notice. 33 	Alleged	 gang	 members	
complain	 that	 officers	 often	 ignore	 the	 consent	
requirement	and	that	signatures	are	rarely,	if	ever,	
given	knowingly	and	voluntarily.		
	 Law	enforcement	agencies	retain	the	F.I.	cards	
and	S.T.E.P.	notices	and	may	enter	the	information	
from	 them	 into	 “gang	 books”	 or	 into	 electronic	
databases	 commonly	 described	 as	 “in-house”	 or	
“local”	 databases. 34 	So	 long	 as	 this	 gang	
documentation	 is	 kept	 within	 the	 agency	 and	
used	solely	for	investigatory	purposes,	there	is	no	
requirement	 that	 agencies	 give	 notice	 of	 the	
documentation	 to	 the	 alleged	 gang	 member	 and	
the	 alleged	 gang	 member	 has	 no	 right	 to	 contest	
the	documentation.35	 	





Screenshots	of	GangNet	software	showing	types	and	uses	of	information	typically	available	
through	computerized	databases	of	gang	allegations	47	


given	 notice	 when	 a	 juvenile	 is	 documented	 as	 a	
gang	member	in	CalGang	and	juveniles	have	the	
right	 to	 contest	 their	 inclusion	 in	 CalGang. 48	
People	 have	 the	 right	 to	 request	 information	
about	 their	 CalGang	 file	 from	 their	 local	 law	
enforcement	 agency,	 though	 some	 law	
enforcement	agencies	maintain	this	right	extends	
only	to	juveniles.	It	is	also	unclear	whether	a	local	
law	 enforcement	 agency	 must	 share	 information	
regarding	 gang	 documentation	 in	 CalGang	
entered	 by	 a	 different	 local	 law	 enforcement	
CalGang	 also	 has	 purge	 requirements.	 If	 a	
person	has	no	new	gang	documentation	recorded	
in	 a	 five-year	 period,	 that	 person’s	 information	
should	 be	 purged	 from	 CalGang.49	However,	 a	
single	F.I.	card	entered	within	that	five	years	will	

restart	the	five	year	purge	period.50		 	
	 Because	CalGang	is	designed	with	such	a	low	
threshold	 for	 entry,	 merely	 having	 an	 entry	 in	
CalGang	 should	 not	 alone	 be	 used	 as	 evidence	 of	
gang	membership.51	CalGang	developed	out	of	the	
earlier	G.R.E.A.T.	database,	which	was	recognized	
as	 significantly	 over-inclusive.52	Advocates	 of	 the	
over-inclusive	 approach	 to	 gang	 databases	 claim	
that	including	a	greater	number	of	people	makes	
the	 database	 more	 useful	 for	 investigations.53	
Those	 advocates	 further	 claim	 that	 limiting	 the	
use	 of	 the	 database	 to	 only	 law	 enforcement	
officers	with	a	right-to-know	and	a	need-to-know	
provides	 sufficient	 protection	 against	 harms	 to	
Because	 of	 the	 risk	 that	 CalGang	 is	 over-

	 Omar	is	a	former	 gang	 member	 who	 considered	 petitioning	 his	 local	District	Attorney	for	removal	
from	a	gang	injunction.	However,	because	he	has	no	right	to	notice	of	allegations	of	gang	membership	by	
law	enforcement,	he	is	unable	to	discover	the	evidence	against	him	or	defend	himself	against	erroneous	
	 Omar	 is	 a	 migrant	 from	 Mexico	 who	 lawfully	 resides	 in	 the	 United	 States	under	 the	 Convention	
Against	 Torture.	 	When	 he	 was	 a	 teenager,	 nearly	 twenty	 years	 ago,	 Omar	 was	 member	 of	 a	 gang	and	
was	convicted	of	crimes	resulting	from	his	participation	in	the	gang.		After	a	short	prison	sentence	as	a	
young	 adult,	 Omar	 left	 the	 gang	 and	 moved	 out	 of	 the	 neighborhood.	 Omar	 still	 lives	 away	 from	 the	
neighborhood	of	his	old	gang	and	has	worked	full	time	at	the	same	job	for	most	of	the	last	decade.	He	
has	not	been	arrested	for	a	gang	crime	in	nearly	twenty	years.	
Even	a	few	years	after	leaving	the	gang	and	moving	to	a	new	neighborhood,	Omar	was	added	to	
a	gang	injunction	against	his	former	gang	based	on	old	information.	Despite	the	years	since	he	left	the	
gang,	and	despite	the	length	of	time	he	has	gone	without	an	arrest,	Omar	still	remains	subject	to	a	gang	
injunction	and	is	stopped	at	least	every	few	years	and	questioned	by	police.		Based	on	his	visible	tattoos,	
his	ethnicity,	and	his	general	appearance,	Omar	believes	police	continue	to	erroneously	document	him	
as	 an	 active	 gang	 member	 after	 each	 of	 these	 stops.	 	Since	 he	 has	 never	 gone	 more	 than	 five	 years	
without	 being	 questioned	 by	 the	 police,	 Omar	 believes	 he	 has	 never	 been	 purged	 from	 the	 gang	
database	and	is	unlikely	to	ever	be	purged.		
Omar	would	like	to	take	advantage	of	his	county’s	informal	process	for	requesting	removal	from	
the	 gang	injunction.	However,	he	 does	not	know	what	documentation	of	erroneous	allegations	of	 gang	
membership	 is	 kept	 in	 law	 enforcement	 files	 and	 so	 he	 cannot	 refute	 any	 allegations	 as	 part	 of	 his	
removal	request.	Omar	had	decided	not	to	request	removal	from	the	injunction	at	this	time.	



inclusive,	it	is	CalGang	policy	that	an	entry	in	the	
CalGang	database	should	not	be	used	as	evidence	
of	gang	membership,	but	CalGang	should	instead	
be	 used	 only	 as	 a	 way	 of	 accessing	 source	
documents	 such	 as	 F.I.	 cards	 that	 might	
independently	 indicate	 gang	 membership. 55 	In	
fact,	it	is	CalGang	policy	that	the	name	“CalGang”	
not	 be	 placed	 in	 reports,	 memorandums,	
correspondence,	 statements	 of	 facts,	 or	 similar	
	 In	 addition	 to	 sharing	 gang	 documentation	
through	 CalGang	 and	 its	 networked	 GangNet	
databases,	 California	 law	 enforcement	 agencies	
also	 share	 gang	 documentation	 through	 the	
National	 Crime	 Information	 Center’s	 Violent	
Criminal	 Gang	 File	 (NCIC	 Gang	 File),	 maintained	
by	 the	 Federal	 Bureau	 of	 Investigation. 57 	The	
NCIC	 manages	 twenty-one	 separate	 databases,	
referred	 to	 individually	 as	 files. 58 	These	 files	
include,			for			example,			a			stolen			vehicle			file,			a	

missing	persons	file,	an	immigration	violator	file,	
and	the	like.59	The	NCIC	files	have	been	described	
as			“the			lifeline			of			law			enforcement,”			in			part	
because	 these	 are	 the	 files	 most	 commonly	
accessed	 by	 police	 officers	 on	 their	 patrol	 cars’	
laptop	computers.60		
	 The	 NCIC	 Gang	 File	 is	 populated	 by	 records	
entered	by	cooperating	law	enforcement	agencies	
and	 is	 searchable	 by	 any	 cooperating	 law	
enforcement	 agency. 61 	The	 NCIC	 Gang	 File’s	
guidelines	 for	 entry	 and	 purge	 of	 gang	
documentation	is	similar	to	those	of	CalGang,	but	
without	 the	 juvenile	 notice	 requirement.62	While	
the	 NCIC	 criteria	 for	 entry	 includes	 gang	 dress	
and	presence	in	a	gang	area,	the	NCIC	criteria	also	
demands	 that	 at	 least	 one	 of	 the	 following	
additional	criteria	be	met:	self-admission,	arrests	
for	gang	activity,	or	allegations	of	membership	by	
an	informant.63	






Harms	that	result	from	erroneous	gang	allegations	range	from	increased	
scrutiny	 by	 police	 to	 enhanced	 punishment	 for	 criminal	 convictions.	 For	
undocumented	 people	 seeking	 immigration	 relief,	 erroneous	 gang	 allegations	
can	have	severe	consequences	in	immigration	proceedings.	Specifically,	we	have	
found	such	allegations	greatly	compromise	applications	for	relief	such	as	DACA	
and	unnecessarily	prolong	people’	stays	in	immigration	detention.	
immigration	 law	 extensively	 relies	 on	 criminal	
history	 to	 make	 deportation	 decisions. 67 	In	 a	
system	 that	 has	 few	 outlets	 for	 equitable	
discretion,	 undocumented	 immigrants	 with	 even	
minor	 crimes	 in	 their	 criminal	 history	 can	 easily	
find	themselves	facing	automatic	deportation.	
DHS’s	 exercise	 of	 prosecutorial	 discretion	
impacts	 populations	 differently.	 Undocumented	
immigrants	that	DHS	deems	to	present	a	threat	to	
national	security,	border	security,	public	safety,	or	
the	 integrity	 of	 the	 immigration	 system	 are	 not	
eligible	 for	 prosecutorial	 discretion	 and	 receive	
top	 priority	 for	 deportation. 68 	However,	
undocumented	 immigrants	 with	 close	 ties	 to	 the	
United	 States,	 such	 as	 having	 family	 in	 the	 U.S.,		
attending	school	in	the	U.S.,	or	serving	in	the	U.S.	
military,	 receive	 favorable	 prosecutorial	
discretion	 and	 are	 not	 given	 top	 priority	 for	
One	 form	 of	 prosecutorial	 discretion	 is	
deferred	 action,	 which	 effectively	 serves	 as	 a	
promise	 on	 the	 part	 of	 the	 federal	 government	
that	 it	 will	 not	 attempt	 to	 deport	 a	 person	 for	 a	
certain	 amount	 of	 time.70	Deferred	 action	 does	
not	 grant	 an	 immigrant	 any	 legal	 status	 in	 the	
United	 States	 but	 temporarily	 eliminates	 the	
threat	 of	 deportation.	 A	 person	 with	 deferred	
action	 can	 also	 apply	 for	 work	 authorization	 and	
other	 benefits,	 such	 as	 a	 driver’s	 license.71	DHS	

Allegations	 of	 gang	 membership	 are	
particularly	 problematic	 for	 undocumented	
immigrants	 who	 would	 otherwise	 have	 a	 strong	
case	 for	 prosecutorial	 discretion	 and	 similar	
immigration	relief	based	on	the	person’s	equities.	
This	is	because	the	decision	of	whether	or	not	to	
grant	 relief,	 as	 the	 name	 prosecutorial	 discretion	
implies,	 relies	 entirely	 on	 the	 discretion	 of	
individual	immigration	officials	and	is	not	subject	
to	judicial	review.64			
Prosecutorial	 discretion	 is	 a	 type	 of	
alternative	 to	 deportation	 granted	 by	 the	
Department	of	Homeland	Security	(DHS)	in	cases	
where	a	noncitizen	is	deemed	not	to	be	a	priority	
for	 deportation. 65 	Prosecutorial	 discretion	 can	
take	 various	 forms.	 For	 example,	 DHS	 could	
decide	 not	 to	 initiate	 deportation	 proceedings	
against	 a	 noncitizen,	 stay	 a	 final	 deportation	
order,	 or	 move	 for	 an	 administrative	 closure	 of	
deportation	proceedings.66	
For	undocumented	immigrants	with	any	kind	
of	 criminal	 history,	 prosecutorial	 discretion	 has	
become	 an	 increasingly	 important	 opportunity	
for	 immigration	 relief.	 This	 is	 because	


has	 created	 formal	 procedures	 to	 apply	for	
deferred	 action	 for	 immigrants	 who	 fall	 into	
certain	 categories	 --	 Deferred	 Action	 for	
Childhood	 Arrivals	 (DACA)	 and	 Deferred	 Action	
for	 Parental	 Accountability	 (DAPA).72	DAPA	 and	
an	expansion	 to	 DACA	 are	 currently	 suspended	
pending	 a	 court	 challenge. 73 	However,	 the	
previous	DACA	program	is	still	in	effect.74	
There	 is	 a	 significant	 risk	 in	 applying	 for	
prosecutorial	 discretion. 75 	Applications	 require	

that	 undocumented	 immigrants	 come	 out	 of	 the	
shadows	 and	 present	 themselves	 to	 DHS	 as	
undocumented	immigrants	currently	living	in	the	
United	 States.76	For	 undocumented	 immigrants	
facing	erroneous	allegations	of	gang	membership,	
this	 could	 be	 especially	 risky.	 Applications	 for	
prosecutorial	 discretion	 may	 bring	 allegations	 of	
gang	 membership	 to	 the	 attention	 of	 DHS	 that	
would	 have	 otherwise	 been	 unnoticed.	 As	 a	
result,	 DHS	 could	 initiate	 deportation	

Claudio	 is	 a	 strong	 candidate	 for	 deferred	 action	 but	 has	 not	 applied	 because	 he	 fears	 that	
erroneous	 gang	 allegations	 will	 result	 in	 a	 denial	 of	 his	 petition	 and	 possibly	 make	 him	 a	 priority	 for	
Claudio	was	brought	to	America	by	his	family	when	he	was	a	child.		He	has	never	been	charged	
with	 a	 crime,	 but	 he	 did	 join	 a	 gang	 for	 several	 years	 when	 he	 was	 an	 adolescent.	 	During	 that	 time,	
he	received	gang	tattoos,	including	tattoos	visible	on	his	face	and	neck.	But	after	marrying	and	starting	a	
family,	Claudio	left	his	gang.	Claudio	now	works	full	time	and	is	an	active	father	to	his	children.	Despite	
leaving	 the	gang,	Claudio	continues	to	be	regularly	stopped	and	interviewed	by	police.		Because	 of	his	
permanent	 tattoos	 and	 residence	 in	 a	 high	 crime	 neighborhood,	 each	 of	 these	 police	 contacts	 could	
justify	restarting	the	clock	on	any	gang	database	purge	date.	
Additionally,	there	is	one	officer	who	Claudio	believes	has	a	personal	vendetta	against	him	and	
who	 could	 be	 ensuring	 that	 Claudio’s	 gang	 documentation	 is	 never	 purged.	 	On	 one	 occasion	 when	
Claudio	 was	 driving	 his	 daughter	 to	 school,	 this	 officer	 arrested	 Claudio	 because	 Claudio	 fit	 the	
description	of	a	murder	suspect.	During	the	arrest,	the	officer	spit	in	Claudio’s	face.		After	a	commander	
came	 out	 and	 determined	 Claudio	 was	 not	 the	 suspect	 they	 were	 looking	 for,	 the	 commander	
reprimanded	 the	 officer	 in	 front	 of	 other	 officers	 and	 Claudio.	 Claudio	 believes	 this	 officer	 may	 be	
regularly	and	falsely	documenting	Claudio	as	an	active	gang	member	as	an	act	of	retribution.	
As	 a	 result,	Claudio	 believes	 it	 likely	 that	 he	 will	 continue	 to	 be	designated	 as	 a	 gang	 member	
despite	 never	 having	 been	 convicted	 of	 a	 crime	 and	 no	 longer	 being	 a	 member	 of	 a	 gang.	 	Because	 of	
this,	 Claudio	 and	 his	 wife	 avoid	 letting	 Claudio	 drive	 with	 his	 children	 in	 the	 car	 for	 fear	 of	 police	
conduct	if	Claudio	is	stopped.		
As	 a	 childhood	 arrival	 with	 no	 criminal	 history,	 Claudio	 should	 be	 a	 strong	 candidate	 for	
deferred	 action.	 But	 because	 he	 worries	 that	 the	 DHS	 attorney	 that	 reviews	 his	 petition	 will	 discover	
erroneous	 gang	 allegations,	Claudio	 is	 afraid	 to	 apply.	 	His	 local	 police	 department	 agreed	 to	 tell	 him	
if	they	 have	 designated	 him	 a	 gang	 member	 in	 CalGang,	 but	 not	 to	 tell	 him	 if	 other	 jurisdictions	 have	
designated	him	or	if	DHS	will	know	though	a	shared	database	that	another	agency	has	designated	him	a	
gang	member.	Claudio’s	local	law	enforcement	agency	claims	he	is	not	currently	entered	in	CalGang	by	
them.	However,	because	of	the	many	possible	ways	erroneous	allegations	of	gang	membership	might	be	
presented	to	DHS,	as	of	now,	Claudio	has	not	applied	for	deferred	action.		


proceedings	 since	 gang	 allegations	 can	 justify	
prioritizing	 a	 person	 for	 deportation. 77	
Furthermore,	 undocumented	 immigrants	 must	
make	 the	 decision	 whether	 to	 apply	 for	
prosecutorial	 discretion	 without	 adequate	
information. 78 	As	 described	 above,	 gang	
allegations	may	be	made	and	shared	with	DHS	in	
a	 variety	 of	 ways.	 Often,	 the	 allegations	 occur	
without	 notice	 to	 the	 person	 or	 scrutiny	 from	
public	 disclosure	 laws.	 Because	 prosecutorial	
discretion	 is	 subject	 to	 so	 little	 review	 and	
because	so	little	of	the	decision	making	process	is	
shared,	 it	 is	 unknown	 how	 often	 erroneous	 gang	
allegations	 lead	 to	 refusals	 of	 prosecutorial	
discretion	 or	 to	 people	 becoming	 priorities	 for	
deportation	from	the	United	States.	However,	the	
threat	 alone	 is	 significant	 enough	 to	 prevent	
many	immigrants	from	applying.79	
Undocumented	 immigrants	 facing	 erroneous	
allegations	 of	 gang	 membership	 face	 an	
additional	 dilemma	 when	 applying	 for	 DACA	
relief.	 The	 DACA	 application	 requires	 applicants	
to	 state	 whether	 they	 are	 or	 have	 ever	 been	 a	
member	of	a	gang.80	Not	only	does	DHS	prioritize	
gang	 members	 for	 deportation,	 DHS	 also	
prioritizes	 the	 deportation	 of	 DACA	 applicants	
who	 make	 false	 statements	 on	 their	
applications. 81 	If	 an	 applicant	 denies	 gang	
membership	but	is	erroneously	documented	as	a	
gang	 member,	 the	 applicant	 may	 be	 made	 a	
priority	 for	 deportation	 if	 the	 DHS	 attorney	
believes	the	applicant	is	lying.	Thus,	an	applicant	
who	has	been	erroneously	documented	as	a	gang	
member	 risks	 being	 made	 a	 priority	 for	
deportation	whichever	answer	they	give.	
	Gang	 allegations	 can	 also	 adversely	 impact	
other	applications	for	relief	from	deportation	that	
use	 equitable	 discretion	 like	 U	 Non-Immigrant	
Status	 (U	 Visa)	 and	 Special	 Immigrant	 Juvenile	
(SIJ)	 petitions. 82 	U	 Visas	 are	 visas	 offered	 to	
victims	 of	 crimes	 in	 the	 United	 States,	 and	 in	
some	 cases,	 to	 the	 victim's	 children.83	SIJ	 grants	
legal	 status	 to	 qualifying	 unaccompanied	

minors. 84 	In	 both	 cases,	 there	 are	 some	
inadmissibility	 criteria,	 such	 as	 past	 criminal	
convictions,	that	can	bar	a	person	from	qualifying	
for	 legal	 status.85	While	 courts	 can	 waive	 the	
inadmissibility	 requirements,	 prosecutors	 may	
use	 gang	 allegations	 as	 a	 reason	 to	 oppose	 a	
waiver.86		As	with	DACA,	it	is	unknown	how	often	
this	happens.	

Immigration	detention	is	the	incarceration	of	
a	person	while	awaiting	a	determination	of	his	or	
her	 immigration	 status	 or	 deportation	 order.	 In	
1996,	 Congress	 required	 the	 mandatory	
detention	 of	 noncitizens	 convicted	 of	 a	 wide	
range	 of	 criminal	 offenses,	 including	 minor	
ones. 87 	Recent	 court	 decisions,	 however,	 now	
allow	detainees	to	receive	an	individualized	bond	
hearing	after	180	days	of	detention.88	
At	 the	 individualized	 bond	 hearings,	 an	
immigration	 judge	 decides	 whether	 a	 detainee	
poses	 a	 flight	 risk	 or	 is	 a	 danger	 to	 the	
community.89	If	 the	 judge	 determines	 that	 the	
detainee	 is	 not	 a	 flight	 risk	 or	 danger	 to	 the	
community,	 the	 judge	 will	 grant	 bond	 and/or	
place	the	detainee	under	supervised	release.	
A	detainee	who	is	erroneously	alleged	to	be	a	
gang	 member	 may	 be	 unnecessarily	 detained	 for	
long	 periods	 of	 time	 and	 foreclosed	 of	 the	
opportunity	 to	 be	 released	 out	 on	 bond	 because	
of	the	gang	allegations.		
DHS	prosecutors	may	use	gang	allegations	as	
evidence	 that	 the	 detainee	 is	 a	 danger	 to	 the	
community	and	should	not	be	released,	or	should	
be	 released	 only	 upon	 posting	 an	 extraordinarily	
large	 bond.90	DHS	 prosecutors	 may	 also	 point	 to	
gang	 membership	 as	 evidence	 of	 a	 support	
network	 able	 to	 assist	 the	 detainee	in	 flight	from	
the	court’s	jurisdiction.		
In	some	courts,	DHS	prosecutors	do	not	even	
need	to	expressly	state	that	a	detainee	is	affiliated	


with	 a	 gang	 in	 order	 for	 the	 allegation	 to	
negatively	 influence	 a	 bond	 determination.	
Because	DHS	offices	and	detention	facilities	often	
color	 code	 the	 folders	 and	 uniforms	 of	 detainees	
they	 believe	 are	 higher	 risk,	 a	 DHS	 prosecutor	

needs	 only	 to	 call	 attention	 to	 the	 color	 of	 the	
folder	 that	 corresponds	 to	 the	 detainee’s	 case	 or	
uniform.91	A	judge	might	interpret	the	color	of	the	
folder	 or	 uniform	 as	 evidence	 of	 gang	
membership	 and	 either	 raise	 or	 deny	 bond	 on	

Eduardo	 was	 deported	 to	 Mexico	 from	 the	 United	 States	 in	 2015	 as	 a	 result	 of	having	 been	
erroneously	identified	as	a	gang	member	by	law	enforcement.		
Eduardo	was	brought	to	America	by	his	parents	when	he	was	pre-school	age.		While	growing	up	
in	 America,	 both	 parents	 picked	 fruits	 and	 vegetables	 full-time	 in	 nearby	 farms.	 As	 a	 result,	 Eduardo	
was	mostly	raised	by	an	older	brother	who	was	a	hardcore	gang	member.	Eduardo	grew	up	influenced	
by	his	 brother’s	 style	 and	 surrounded	 by	gang	 graffiti	in	 his	 home.	 When	 Eduardo	 was	 still	 in	
elementary	 school,	 Eduardo	 began	sneaking	 into	 neighbors’	 houses	 and	 taking	 small	 items.	 	When	
Eduardo	 was	 arrested	 for	 this	 at	 13	 years	 old,	 his	 home	 was	 searched.	 Based	 on	 the	 gang	 graffiti	 his	
brother	left	around	the	house,	the	city	attorney	added	Eduardo	to	a	gang	injunction.		Eduardo	was	not	a	
member	 of	 his	 brother’s	 gang	 at	 that	 time	 because	 his	 older	 brother	 considered	 him	 too	 young	 to	 be	
Several	 years	 after	 being	 added	 to	 the	 gang	 injunction,	 and	 after	 several	 incidents	 where	
Eduardo	 found	 himself	 treated	 like	 a	 gang	 member	 by	 law	 enforcement	 agents,	Eduardo	 joined	 his	
brother’s	 gang.	 But	 after	 a	 few	 years,	 Eduardo	 began	 distancing	 himself	 from	 the	 gang	 to	 spend	 more	
time	 with	 his	 girlfriend.	 Soon	 after,	 the	 two	 had	 a	 son	 together.	 Eduardo’s	 son	 was	 born	 with	
developmental	delays	and	Eduardo	began	spending	all	his	free	time	caring	for	his	son	and	taking	his	son	
to	therapy	sessions.	After	his	son’s	birth,	Eduardo	left	the	gang	entirely.	Eduardo’s	girlfriend	and	son	are	
both	U.S.	citizens.	
During	 this	 same	 time,	 Eduardo’s	 mother	 petitioned	 for	 deferred	 action	 for	Eduardo	 under	
DACA.	 	This	 was	 complicated	 by	 several	 non-gang	 related	 criminal	 convictions	 Eduardo	 received	 as	 a	
teenager	 and	 young	 adult,	 but	 his	 family	 retained	 a	 lawyer	 who	 was	 working	 on	 Eduardo’s	
application.	 	Then,	 in	 2013,	 Eduardo	 was	 arrested	 for	 wearing	 a	 borrowed	sweater	 with	 a	 Cowboys’	
football	 logo	and	for	possession	of	stolen	property.		Wearing	a	Cowboys	 sweater	was	a	crime	because,	
despite	 leaving	 the	 gang,	Eduardo	 was	 still	 named	 in	 a	 gang	 injunction	 that	 considered	 the	 Cowboys	
logo	a	gang	insignia.			
	 These	convictions	were	a	setback	to	his	deferred	action	application,	but	with	some	time,	they	could	
have	been	expunged	and	his	application	could	have	gone	forward.		However,	at	his	first	bond	hearing	in	
immigration	detention,	the	DHS	attorney	accused	Eduardo	of	being	a	danger	to	the	community	because	
he	was	a	gang	member.	Eduardo	was	denied	bond.	Later,	Eduardo	received	a	copy	of	the	I-213	form	the	
DHS	 attorney	 used	 in	 that	 hearing.	 That	 form	 alleged,	 in	 all	 capital	 letters,	 that	 Eduardo	 was	 a	 gang	
member	but	gave	no	evidence	for	that	allegation.		The	immigration	judge	denied	bond,	thereby	speeding	
up	the	timeline	for	Eduardo’s	deportation	and	making	it	impossible	for	him	to	expunge	his	convictions	
and	 apply	 for	 deferred	 action	 before	 a	 final	 deportation	 order.	 	In	 2015,	Eduardo	 was	 deported	 to	
Mexico,	a	country	he	had	not	seen	since	before	kindergarten,	separating	him	from	his	son	and	his	son’s	

that	 basis.	 Even	 if	 the	 court	 does	 not	 deny	 bond	
because	of	gang	allegations	but	only	increases	the	
bond,	 a	 prohibitively	 high	 bond	 will	 force	 the	
respondent	to	remain	in	detention	the	same	as	if	
bond	had	been	denied.		
While	 detainees	 can	 challenge	 the	 DHS’s	
allegations	 of	 gang	 membership,	 most	 do	 not	
because	they	lack	the	financial	resources	to	retain	
attorneys	 for	 bond	 hearings.92	Detainees	 often	
rely	 on	 pro	 bono	 legal	 orientation	 programs	 in	
detention	facilities	to	help	them	prepare	for	bond	
hearings,	 but	 these	 programs	 are	 ill-equipped	 to	
adequately	 prepare	 detainees	 to	 argue	 the	
admissibility	of	gang	allegations.93		
Furthermore,	 the	 Sixth	Amendment	 guarantee	
of	the	right	to	confront	witnesses	does	not	apply	
in	 immigration	 court	 and	 so	 detainees	 have	 no	
right	 to	 question	 law	 enforcement	 officers	 who	
document	 gang	 allegations. 94 	Additionally,	
respondents	 will	 rarely,	 if	 ever	 be	 adequately	
prepared	 to	 respond	 to	 gang	 allegations	 at	 bond	
hearings	 because	 there	 is	 no	 right	 to	 prior	
discovery	 of	 the	 evidence	 that	 will	 be	 presented	
at	the	hearing.95		
Not	being	able	to	post	bond	has	consequences	
for	 the	 detainee’s	 ability	 to	 pursue	 the	 merits	 of	
his	 deportation	 case.	 Detained	 respondents	 who	
do	 not	 post	 bond	 will	 often	 have	 years	 less	 time	
to	make	their	case	to	remain	in	the	United	States,		

more	 difficulty	 accessing	 legal	 resources,	 and	
greater	 challenges	 keeping	 ties	 to	 their	
community	that	could	be	useful	for	their	case.96		
Moreover,	 detainees	 will	 also	 have	 to	 endure	
the	 hardships	 of	 being	locked	 up	 in	 prison-like	
conditions	—	 including	distance	 from	 family,	
friends,	 and	 community;	 loss	 of	 purpose;	 and	
traumatizing	 feelings	 of	 humiliation	 and	
Unfortunately,	 denial	 of	 bond	 or	 a	
prohibitively	 high	 bond	 is	 not	 the	most	 serious	
harm	a	respondent	might	face	as	a	result	of	gang	
allegations.	 The	 most	 serious	 harm	 in	
immigration	 detention	 comes	 when	 ICE	 agents	
threaten	 to	 share	 gang	 allegations	 with	 a	
detainee’s	home	country.98	Alleged	gang	members	
originally	from	Mexico	or	Central	America	face	an	
alarming	 likelihood	 of	 extra-judicial	 murder	 in	
their	 home	 country	 or	 murder	 by	feuding	
criminal	 gangs. 99 	While	 these	 threats	 by	 ICE	
agents	 are	 unlawful,	 complaints	of	 these	 threats	
have	 been	 sustained	 against	 ICE	 in	 court.100	And	
even	 if	 the	 ICE	 agents	 making	 these	 threats	 have	
no	 intention	 of	 actually	 following	 through	 on	
them,	 the	 very	 real	 possibility	 of	 death	 may	
compel	 respondents	 to	 agree	 to	 voluntary	
departure	 or	 to	 whatever	 demands	 are	 made	 of	






Considering	 law	 enforcement	 agencies’	
practice	of	sharing	investigatory	information,	the	
high	 risk	 of	 erroneous	 gang	 allegations,	 and	 the	
prejudicial	 effect	 of	 gang	 allegations,	 current	
practices	intended	to	protect	the	rights	of	people	
erroneously	 accused	 of	 gang	 membership	 are	
The	 right	 to	 due	 process	 of	 law	 for	 people	
erroneously	 accused	 of	 gang	 membership	 can	
only	 be	 satisfied	 by	 requiring	 that	 law	
enforcement	agencies	give	alleged	gang	members	
notice	of	gang	documentation	and	an	opportunity	
to	contest	allegations	of	gang	membership.		
1. Expand	Notice	Rights	
Under	 current	 law,	 notice	 rights	 are	 given	 to	
juveniles	 documented	 as	 gang	 members	 in	
CalGang.	This	right	should	be	expanded	to	adults	
and	 include	 all	 documentation	 of	 gang	
membership	 by	 law	 enforcement	 agencies,	 not	
just	allegations	entered	into	a	shared	database.		
2. Improve	Notice	Practices		
Ideally,	 notice	 should	 be	 provided	 in	 person,	
as	 is	 the	 practice	 of	 law	 enforcement	 agencies	
that	 serve	 S.T.E.P.	 notices	 to	 alleged	 gang	
members.	 However,	 due	 to	 the	 inherent	
coerciveness	 of	 in-person	 service	 by	 a	 law	
enforcement	 officer,	 alleged	 gang	 members	
should	not	be	asked	to	consent	to	documentation	
as	gang	members	or	asked	to	waive	their	right	to	
contest	gang	allegations	when	served	with	notice.	
3. Offer	Neutral	Review	Hearings	
Contests	to	gang	allegations	might	begin	with	
a	 written	 request	 for	 review	 by	 the	 law	
enforcement	 agency	 making	 the	 allegation.	
However,	 that	 agency’s	 determination	 should	 be	

appealable	 in	 a	 hearing	 before	 a	 neutral	
adjudicator.	This	adjudicator	should	not	be	a	law	
enforcement	 officer	 but	 should	 instead	 be	 an	
independent	 arbiter.	 Hearings	 should	 include	 a	
right	of	the	alleged	gang	member	to	discovery	of	
any	 evidence	 to	 be	 used	 against	 him	 or	 her	 in	
advance	 of	 the	 hearing.	 Decisions	 should	 be	
appealable	in	state	court.		
We	 recognize	 that	 a	 requirement	 of	 notice	
and	 hearings	 could	 chill	 the	 collection	 of	 some	
investigatory	documents	that	effectively	serve	the	
public	 interest	 and	 promote	 public	 safety.	 If	 law	
enforcement	 agencies	 continue	 to	 document	
hundreds	 of	 thousands	 of	 people	 as	 gang	
members,	 providing	 notice	 and	 hearings	 to	 all	 of	
them	 could	 become	 impossibly	 burdensome.	
However,	this	is	only	the	case	if	law	enforcement	
agents	continue	to	maintain	vastly	over-inclusive	
databases	of	gang	allegations.	If	law	enforcement	
agencies	were	to	limit	the	people	documented	as	
active	 gang	 members	 only	 those	 whose	
membership	 can	 be	 proven	 and	 instead	
document	other	people	as	merely	associated	with	
a	 gang,	 the	 burden	 of	 notice	 and	 hearing	 rights	
would	be	greatly	reduced.		
Because	 we	 at	 the	 IRC	 have	 found	 clear,	
documented	 harms	 resulting	 from	 allegations	 of	
gang	 membership	 made	 by	 law	 enforcement	
agents	outside	of	any	judicial	process,	we	believe	
notice	 and	 an	 opportunity	 for	 a	 hearing	 must	 be	
provided	 whenever	 law	 enforcement	 agents	
document	 a	 person	 as	 an	 active	 gang	 member.	
Anything	less	fails	to	uphold	the	principles	of	due	
process	 on	 which	 our	 immigration	 and	 criminal	
justice	systems	depend.	



See Watkins, Derrick and Richard Ashby, Gang Investigations: A Street Cops Guide, AMERICAN SOCIETY FOR LAW
ENFORCEMENT TRAINING (2007); Anderson, John and Mark Nye, “Investigating the Gang Case: Law Enforcement’s Impact
on Successful Prosecution” in Gang Prosecution Manual; NATIONAL YOUTH GANG CENTER (July 2009), available from the
U.S. Department of Justice at;
Hufstader, Rebecca, Immigration Reliance on Gang Databases: Unchecked Discretion and Undesirable Consequences, 90
NEW YORK UNIVERSITY LAW REVIEW 671 (2015), available from New York University at; Alarcon, Daniel, How Do You
Define a Gang Member?, NEW YORK TIMES MAGAZINE, May 27, 2015 available from the New York Times at; Winston, Ali, You May Be In
California’s Gang Database and Not Even Know It, REVEAL NEWS, March 23, 2016 available from Reveal News at

As reported in a response to a 2015 Public Records Act request to the CalGang Executive Board, on file with the UC Irvine
School of Law Immigrant Rights Clinic.

This statistic was derived by comparing the 2015 Public Records Act request to the CalGang Executive Board with census
data from According to this data, there are approximately 5,600,000 men in California between the ages of
15 and 34. Subtract from that number the approximately 1,900,000 white, non-Hispanic men between the ages of 15 and 34
and the result is 3,700,000 men of color between the ages of 15 and 34. There are approximately 106,000 men between the
ages of 15 and 34 in CalGang. Subtract from that number the approximately 7,000 white men between the ages of 15 and 34
in CalGang and the result is 99,000 men of color between the ages of 15 and 34 in CalGang. Dividing the 99,000 in CalGang
from the 3,700,000 total results in approximately one in 40.

See Hufstader, supra; Anderson and Nye, supra, (discussing gang documentation regulations and recommendations for
agency policies in the absence of regulations).

See Hufstader, supra; Youth Justice Coalition, Tracked and Trapped: Youth of Color, Gang Databases and Gang
Injunctions (December 2012), available from the Youth Justice Coalition at; Brown, Rebecca Rader, The Gang’s All Here: Evaluating the Need for a
National Gang Database, 42 COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS 293 (Spring 2009); Chacon, Jennifer M.,
Whose Community Shield?: Examining the Removal of the Criminal Street Gang Member, UNIVERSITY OF CHICAGO LEGAL
FORUM: Vol. 2007, Article 11 (2007); Wright, Joshua, The Constitutional Failure of Gang Databases, 2 STANFORD JOURNAL
OF CIVIL RIGHTS AND CIVIL LIBERTIES 115 (November 2005); Leyton, Stacey, The New Blacklists: The Threat to Civil
Liberties Posed by Gang Databases, in CRIME CONTROL AND SOCIAL JUSTICE: THE DELICATE BALANCE edited by Darnell F.
Hawkins, Samuel L. Myers Jr., and Randolph N. Stone (2003).

Hufstader, supra; Prosecutorial Discretion: How to Advocate for Your Client, AMERICAN IMMIGRATION COUNCIL (March
18, 2015), available at; Cabrera, Yvette, Troubled
Pasts Force Hard Choices for Some Undocumented Immigrants, VOICE OF OC, February 8, 2016, available from the Voice of
OC at

California Penal Code §§ 186.20 et seq; People v. Lopez, 66 Cal. App. 4th 615, 623 (1998).


See Caldwell, Beth, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 AMERICAN JOURNAL

OF CRIMINAL LAW 241(2010); Shiner, Max, Civil Gang Injunctions: A Guide for Prosecutors,
RESEARCH INSTITUTE (2009) available from the National District Attorneys Association at; Werdegar, Matthew Mickle, Enjoining the Constitution: The Use
of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 STANFORD LAW REVIEW 409 (1999); Atkinson,
Scott E., The Outer Limits of Gang Injunctions, 59 VANDERBILT LAW REVIEW 1693 (2006).

Hufstader, supra; Watkins and Ashby, supra; Anderson and Nye, supra; Youth Justice Coalition, supra; Brown, supra;
Wright, supra. Joshua, supra; Leyton, supra.



California Penal Code §§ 186.20 et seq; California Penal Code § 166 (a) (9).


Watkins and Ashby, supra.




See Watkins and Ashby, supra; Policies and Procedures for the CalGang System, CALIFORNIA GANG NODE ADVISORY
COMMITTEE (2007), available from the State of California Department of Justice at

California Penal Code § 186.30.


Caldwell, supra; Shiner, supra; Werdegar, supra; Atkinson, supra.


Atkinson, supra.


See Cabrera, Yvette, Judge: Residents Owed Due Process in Gang Injunction Case, VOICE OF OC (November 20, 2014),
available from the Voice of OC at

Jones, Alexander, Family Ties or Criminal Contacts: A Case for the Appointment of Counsel in Civil Gang Injunction
Proceedings That Affect Family Relationships, 39 GOLDEN GATE UNIVERSITY LAW REVIEW 41 (2016).

Shiner, supra.


See Hufstader, supra; Watkins and Ashby, supra; Anderson and Nye, supra; Youth Justice Coalition, supra; Brown, supra;
Wright, supra. Joshua, supra; Leyton, supra.

See id.


Watkins and Ashby, supra; Anderson and Nye, supra.


See id.


See Watkins and Ashby, supra; California Gang Node Advisory Committee, supra.


See Hufstader, supra; Anderson and Nye, supra (discussing gang documentation regulations and recommendations for
agency policies in the absence of regulations); California Penal Code § 186.34; Title 28 Code of Federal Regulations Part 23.

California Gang Node Advisory Committee, supra.




See Katz, Charles M. and Vincent J. Webb, POLICING GANGS IN AMERICA at 207-209, Arizona State University (2006).


See Watkins and Ashby, supra; Anderson and Nye, supra; Youth Justice Coalition, supra; Brown, supra; Wright, supra;
Joshua, supra; Leyton, supra.

See Watkins and Ashby, supra; Anderson and Nye, supra.


See Watkins and Ashby, supra; Anderson and Nye, supra; for a photograph of an LAPD field interview card showing
space for gang allegations see Stoltz, Franke, LAPD’s Elite Metro Squad Swarms High Crime Neighborhoods Armed with
'Reasonable Suspicion', KPCC (May 26, 2015), available from KPCC at

Watkins and Ashby, supra; Anderson and Nye, supra.




Anderson and Nye, supra.


See Hufstader, supra; Anderson and Nye, supra (discussing gang documentation regulations and recommendations for
agency policies in the absence of regulations); California Penal Code § 186.34; Title 28 Code of Federal Regulations Part 23.



See id.


See id.


Memorandum of Understanding Between the Department of Homeland Security, Immigration and Customs Enforcement
and California Department of Justice, Criminal Intelligence Bureau Regarding the Sharing of Information Relating to
Criminal Street Gangs (2005), made available in response to a 2015 Public Records Act request to the California
Department of Justice, on file with the UC Irvine School of Law Immigrant Rights Clinic.

See Youth Justice Coalition, supra.


See Hufstader, supra; Memorandum of Understanding, supra; Anderson and Nye, supra.


Anderson, Dacia, Penal Chapter 797: Un-handcuffing Minors from the Gang Life, 45 MCGEORGE LAW REVIEW 561
(2014), available from McGeorge University at



SRA International, Inc., supra.




See SRA International, Inc., supra; Memorandum of Understanding, supra.


See California Penal Code § 186.34.


SRA International, Inc., White Paper: GangNet Software (2013) available from CSRA at



California Gang Node Advisory Committee, supra; Hufstader, supra.


See id.


See id.


See Ira Reiner, Office of the Dist. Att’y of LA, Gangs, Crimes, and Violence in Los Angeles (1992); Charles M. Katz,
Issues in the Production and Dissemination of Gang Statistics: An Ethnographic Study of a Large Midwestern Police Gang
Unit, 49 CRIME AND DELINQUENCY 485 (2003).

See Reiner, supra.


See Harold Valentine, Law Enforcement: Information on the Los Angeles County Sheriff's Department Gang Reporting,
Evaluation, and Tracking System, available from the National Criminal Justice Reference Service at

See California Gang Node Advisory Committee, supra.




See Federal Bureau of Investigation, About us: National Crime Information Center, available from the Federal Bureau of
Investigation at The NCIC Gang File was formerly part of the Violent Gang and
Terrorist Organization File.










See Privacy Act of 1974; Notice of Modified Systems of Records, 64 Federal Register 52343.




Hufstader, supra; American Immigration Council, Prosecutorial Discretion: How to Advocate for Your Client (March 18,
2015), available from the American Immigration Council at





See Jason A. Cade, Enforcing Immigration Equity, 84 FORDHAM LAW REVIEW 661 (2015), available from the Social
Science Research Network at

American Immigration Council (2014), supra.










State of Texas, et al v. United States et al.; Memorandum Opinion and Order, Feb. 16, 2015, (No. 1:14- CV-254), available
from the American Immigration Council at (“Injunction”).

National Immigration Project, Requesting Prosecutorial Discretion for Individuals in Removal Proceedings or Detention
While the Injunction in Texas, et al. v. United States Remains in Effect (July 29, 2015), available from the National
Immigration Project at

See American Immigration Council (2015), supra; American Immigration Council, Deferred Action for Childhood Arrivals
(August 27, 2014), available from the National Immigration Project at

See id.


See id.


See id.


See Hufstader, supra; American Immigration Council (2014) supra; Claudio’s Story, infra at page 10.


See American Immigration Council (2014), supra.




See Department of Homeland Security, Victims of Criminal Activity U Nonimmigrant Status, available from the United
States Citizenship and Immigration Services at; Department of
Homeland Security, Special Immigrant Juvenile (SIJ) Status, available from the United States Citizenship and Immigration
Services at

Department of Homeland Security, Victims of Criminal Activity U Nonimmigrant Status, available from the United States
Citizenship and Immigration Services at



Department of Homeland Security, Special Immigrant Juvenile (SIJ) Status, available from the United States Citizenship
and Immigration Services at

See Taurel, Patrick, Screening Potential DACA Requestors for Other Forms of Relief, AMERICAN IMMIGRATION COUNCIL
(2014) available from the American Immigration Council at; Abarca, Michelle, Deborah Lee
Kathleen Moccio, and Kristin Petri, The ABCs of Representing Unaccompanied Children (2011), AMERICAN IMMIGRATION
LAWYERS ASSOCIATION, available from the American Immigration Lawyers Association at

Id.; Abarca et al, supra.


See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (110 Stat. 3009-546).


See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).


See In re Guerra, 24 I&N Dec. 37 (BIA 2006).


See Eduardo’s Story, infra at page 11.


Interview with Caitlin Sanderson, Staff Attorney at the ACLU of Southern California and former Legal Director of the
Esperanza Immigration Project, March 15, 2016.

See Srikantiah, Jayashri, David Hausman, and Lisa Weissman-Ward, Access to Justice for Immigrant Families and
Communities: A Study of Legal Representation of Detained Immigrants in Northern California, 11 STANFORD JOURNAL OF

Sanderson, supra.


See Holper, Mary, Confronting Cops in Immigration Court, 23 WILLIAM & MARY BILL OF RIGHTS JOURNAL 675 (2016).


See Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995).


See id.


See id.


Interview with Erika Pinheiro, Staff Attorney at the Central American Resource Center, March 25, 2016 (describing a
client granted amnesty under the Convention Against Torture after an ICE officer threatened to send gang documentation to
Honduran police in order to have the client killed by a death squad upon arrival in Honduras).

Washington Office on Latin America, Youth Gangs in Central America: Issues in Human Rights, Effective Policing, and
Prevention, WOLA SPECIAL REPORT (2006) available from the Washington Office on Latin America at

Pinheiro, supra.