Gang or no gang, many immigrants legally stymied by injunctions

SANTA ANA, Calif. — As head of deportation and defense organizing for RAIZ, a migrant-led group in Orange County focused on stopping the deportation of immigrants, Alexis Nava Teodoro’s caseload is brimming with people who qualify for protection under President Barack Obama’s new immigration plan but are too terrified to apply.

Nava comes face to face every day with immigrants who have no criminal record but might have once been gang members or, much more frustrating for him, who just happen to live in a gang neighborhood and are automatically suspect because of geography.

For them, the slightest connection to gangs — however tenuous — may lead to detention and deportation rather than the legal status they dream of when they apply. This legal barrier may affect countless undocumented people, but it has been lost in the excitement over Obama’s executive action in November that will extend protection to an estimated 5 million immigrants here illegally. The plan expands the number of people eligible for deferred deportation if they arrived in the U.S. as children or if they are the parents of American citizens.

But first, they must apply.

That’s a scary proposition for undocumented immigrants who may live in a neighborhood covered by a gang injunction. For them, the application process is a minefield that might flag Immigration and Customs Enforcement (ICE) and may land them in detention and lead to deportation.

Gang injunctions are restraining orders filed by prosecutors that restrict specific and unnamed gang members from a host of activities. They often include curfews, limit social interaction and may even prohibit wearing clothing that matches gang colors. Injunctions are so broad that many residents who live in a targeted neighborhood find themselves linked to gangs just because of their location. And if any are relatives or friends of a suspected gang member, there is an added layer of guilt by association.

“A lot of different people can be in an area covered by a gang injunction,” said Paromita Shah, associate director of the National Immigration Project of the National Lawyers Guild in Washington, D.C. “A gang injunction is meant to bar conduct in an area so that people suspected of being gang members do not talk to one another. It could be based on age or whether they’re driving in the same car.”

Much of the information goes into state and federal gang databases that are often secret. So coming forward to apply for legal status without knowing whether their names will pop up on a gang list is a gamble.

“There isn’t a lot of information on who is on a gang injunction,” said Fawn Bekam, a law student working at the University of California at Irvine School of Law’s Immigrant Rights Clinic.

“This is a huge issue for individuals who may be on gang injunctions and don’t know it,” said Amelia Alvarez, another law student who works at the clinic. “It’s prevented people from applying because they fear they may be denied.”

Gang tattoos cover the arms of one of Nava’s clients, but he hasn’t belonged to a gang for more than seven years. He is now in his 30s and eligible under the expanded Deferred Action for Childhood Arrivals (DACA) program. He doesn’t have a criminal record. He works in an auto shop and has two children who were born in the U.S., giving him even more protection under the new Deferred Action for Parental Accountability (DAPA).

But this client, who didn’t want to be identified, refuses to apply and continues to live in the shadows. “He’s afraid,” Nava said. “He’s completely afraid of applying.”

The bar for anyone with even the most remote association with a gang — from living in a known gang neighborhood to walking from school with a suspected gang member — is so high that it can block qualifying immigrants from even trying to obtain legal status. 

“It ignores the fact that people change,” Shah said. So, for someone who had actually been part of a gang, however many years ago, there is almost no recourse.

“A person can apply and make a case of how they were unfairly placed on gang injunction lists,” said Sameer Ashar, a law professor and a co-director of the Immigrant Rights Clinic. “But it’s definitely a gamble.”

There are few cases of people petitioning to be removed from the list, especially those who arrived here illegally.

Uriel Molina, a San Juan Capistrano resident, was the first Orange County resident in 20 years to have himself removed from a gang injunction, served to alleged members of the Varrio Viejo gang in 2008. He had to agree not to break any of the injunction’s rules for one year before the district attorney agreed to take him off the gang list — a label that is often compared to a scarlet letter.

Complicating matters is that now that California voters approved Proposition 47, some minor offenses that were felonies have been bumped down to misdemeanors. It’s unclear how that will affect undocumented immigrants’ chances at deportation relief.

On top of that, a memo from the U.S. Department of Homeland Security to ICE and Customs and Border Protection outlines new policies for the arrest and deportation of undocumented immigrants.

Among the many enforcement priorities: “Aliens convicted of an offense for which an element was active participation in a criminal street gang” or “aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang.”

That seems to ease the restrictions on eligibility because it specifically cites a conviction or intentionally helping with illegal gang activity. “What’s not yet clear to us is whether this new specific provision is helpful or hurtful,” Ashar said.

Advocates hope that it will end denials based solely on being on a gang list or associating with gang members, Alvarez said.

But there is much confusion over what constitutes furthering the illegal activity of a gang. Can people be barred from applying for deportation relief if they live in a gang neighborhood and don’t abide by a curfew imposed by a gang injunction?

“Let’s say you’re out past 10 and you get arrested for violating a court order,” Escobosa Helzer said. “Let’s say you plead guilty. What you’re pleading guilty to is being an active participant of the gang … It can have a broad effect on individuals who are not committing serious crime.”

Just how broad may not be known for years to come. In the meantime, “people should be very, very careful if they have any kind of gang-related conviction charge on their records, even juvenile crimes,” Ashar said.