Proving a Negative: Challenging Unsubstantiated Gang Allegations in Immigration Court

Identification of an individual as associated with or as a member of a gang functions as a proxy for immigration enforcement. Many immigrants are identified by law enforcement as gang members or affiliates based on scant evidence – a doodle in a school notebook, a tattoo, an anonymous witness statement, a Facebook post, or simply living in a certain neighborhood. The authors describe how allegations of gang membership or affiliation play out in immigration court, where an immigration judge has broad discretionary authority to grant or deny legal relief. In addition, the authors summarize strategies attorneys in immigrant-friendly jurisdictions have used to defend clients against gang allegations. Notably, the lack of appointed counsel in immigration court means that criminal defense lawyers are often the only lawyers an immigrant will ever interact with during the criminal-immigration removal process.