White House press secretary Sarah Huckabee Sanders stands in front of pictures of MS-13 gang tattoos during a press briefing at the White House in Washington on July 27. Alex Brandon AP
White House press secretary Sarah Huckabee Sanders stands in front of pictures of MS-13 gang tattoos during a press briefing at the White House in Washington on July 27. Alex Brandon AP

Local

Feds failed to prove undocumented teens sent to jail were gang members, officials say

By Anita Chabria

achabria@sacbee.com

August 26, 2017 04:00 AM

UPDATED August 26, 2017 12:53 PM

Portraying them as violent criminals swept up during a gang crackdown, the federal government sent at least seven undocumented teenagers from their homes in New York to a high-security detention center in Yolo County. But the head of that facility says his agency could not verify the gang allegations and pushed to have the boys released to less-restrictive facilities.

Brent Cardall, chief probation officer for Yolo County and head of its juvenile detention facility, said federal immigration and local law enforcement agencies are required to provide evidence of the gang affiliation within 30 days of an undocumented minor arriving at the facility. He said they had failed to do so in most of the cases of young men detained as part of a law enforcement sweep against the MS-13 gang in Long Island, backed by President Donald Trump.

Cardall said the gang information provided by local law enforcement in the jurisdictions where the teens were detained as well as through U.S. Immigration and Customs Enforcement (ICE) and the Department of Health & Human Services Office of Refugee Resettlement (ORR), which holds custody of the minors, has been lacking or delayed, leaving Yolo without just cause to hold the minors in its high-security facility. All seven have since been moved by the refugee agency to less restrictive placements outside California while they await immigration proceedings, he said.

“We don’t have any proof it it,” said Yolo County Probation Department case manager Jose Castaneda, who is in charge of vetting allegations against incoming juveniles. “So that’s when we started transferring them out.”

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Victoria Palmer, spokeswoman for the federal Administration for Children and Families, which oversees the refugee resettlement office, said via email that the agency “will not comment on specific cases.”

U.S. Immigration and Customs Enforcement spokeswoman Rachael Yong Yow referred questions to the refugee resettlement agency.

The Office of Refugee Resettlement has come under scrutiny for its handling of undocumented minors as immigration enforcement has increased under the Trump administration. Advocates for detained minors say murky and complex laws governing these children make it hard for them to fight their cases, get legal representation or even learn the charges against them, said Holly Cooper of the University of California Immigration Law Clinic.

In July, Cooper won a case in front of a three-judge panel of the 9th U.S. Circuit Court of Appeals, which ruled noncitizen minors detained by authorities maintain the right to have an independent judge review the government’s reasons for keeping them in custody – a position the federal government argued against.

Then, in August, the American Civil Liberties Union Foundation of Northern California filed a class action lawsuit on behalf of undocumented minors held at the Yolo facility. It alleges that three of the undocumented minors picked up in MS-13 sweeps in Long Island were “held in jail-like conditions for weeks without any process through which they could challenge their confinement or deny the gang allegations that were the reason for their harsh treatment.”

Yolo is one of only two facilities in the United States with high-security housing for undocumented minors in federal custody. The facility provides 24 beds to immigration authorities, paid for by a federal grant, but legal custody of the minors remains with the Office of Refugee Resettlement.

During the same period ORR has faced pressure for more transparency and oversight, the MS-13 gang has risen in prominence in Long Island as a spree of violence led to a federal crackdown.

Law enforcement officials say MS-13 members use extreme violence, including murder, to exert influence on communities, specifically recruiting undocumented and unaccompanied minors. That population of vulnerable teens has grown in recent years. The refugee resettlement office identified more than 59,000 unaccompanied minors in 2016, the majority from Honduras, Guatemala and El Salvador.

MS-13 originated in Los Angeles among Central American refugees, primarily from El Salvador, and has spread throughout the U.S. Formally called La Mara Salvatrucha, MS-13 has been implicated in numerous crimes in Long Island, including the murders of multiple teenagers and young adults since 2016.

In one high-profile incident in Long Island, two teenage girls were attacked and killed with machetes and baseball bats last September. In March, six MS-13 members, including two juveniles, were charged with those murders, according to the U.S. Attorney’s Office.

In April, the decomposing bodies of four young men ages 16 to 20, apparently hacked to death by machetes, were found a few miles from where the girls were attacked. Charges in that case were announced in July and involved three of the same alleged MS-13 suspects.

President Trump has made eradicating the gang a priority. In June, ICE announced it had arrested 39 suspected MS-13 members in New York in “Operation Matador,” and detained or arrested a total of 253 suspected members nationally this year.

But Cooper and other immigration advocates say that crackdown has swept up teenagers too broadly, sometimes for being in the wrong place at the wrong time, wearing the wrong colors or having sports logos favored by the gang. In one instance noted in the ACLU lawsuit, a 17-year-old Salvadoran boy allegedly ended up in Yolo after being stopped by Suffolk County police and targeted for wearing a blue El Salvador soccer jersey.

Julia Mass, an ACLU attorney involved in the lawsuit, called the high-security detentions “terribly unfair and in many instances really inhumane.” She said she is not surprised that many of the allegations have not been substantiated.

“It absolutely tracks our experience in talking to the children we are representing,” she said.

Suffolk County police did not respond to a request for comment.

Cardall, named as a defendant in the ACLU lawsuit, said Thursday that the standards being used by the federal government and other law enforcement agencies to validate gang affiliation may be more lax than the standards in California and in Yolo County, adding to the problem. In addition to needing proof of gang involvement, minors need to present a risk to themselves or the community or have a significant criminal background to qualify for placement at Yolo, he said.

At the federal level, people “are confirmed as gang members if they admit membership in a gang, have been convicted of violating (the federal Criminal Street Gangs Statute) or any other federal or state law criminalizing or imposing civil consequences for gang-related activity, or if they meet certain other criteria such as having tattoos identifying a specific gang or being identified as a gang member by a reliable source,” according to an ICE press release about Operation Matador.

In late June during a court hearing for another plaintiff in the ACLU case, a judge seemed to agree with Yolo’s position and admonished the Office of Refugee Resettlement that it had an obligation to verify gang information received from other agencies, writing that the agency should “conduct a careful check of the accuracy of the information it received from (Department of Homeland Security) … including contacting the appropriate local law enforcement officials who might have information about the child’s status as a member or affiliate of MS-13,” according to court documents.

Faced with lack of proof, Cardall said his agency has tried to investigate the allegations itself, reaching out to the local law enforcement agencies where the minors were first arrested. Often finding corroboration from local law enforcement in New York to be lacking or insufficient, he has pushed for reclassification of each of these teenagers.

Last week, he said Yolo probation received a memo from the director of the Office of Refugee Resettlement lowering the time from 30 to five days that local and federal law enforcement agencies have to provide substantiation before Yolo can begin looking for less restrictive placements.

Cardall said his facility is also refusing to take kids that fail its internal assessment of whether they meet the standards for a high-security lockup.

“We’ve turned down a lot of kids, not just one or two,” Cardall said.

Ray Simmons, Institutional Services director for the Yolo County Probation Department, said he recently received three phone calls asking him to take a suspected MS-13 juvenile, but he declined despite the pressure because he felt the minor didn’t belong at Yolo.

“Technically by the federal government, because he proclaimed he was MS-13, that meets their criteria,” said Simmons. “But the other criteria that he didn’t meet was ... harm to others, self-harm to himself, safety to community. I didn’t hear any of that, so there I’m telling them in the best interest of that youth, a placement here is not appropriate because the criteria for MS-13 being in a gang is also how does it affect the community, how does it affect the safety. I didn’t hear that so I was able to say no.”

Simmons said he’s “not in the business of second guessing law enforcement” on whether the teens in question are rightly classified as gang members, but he would stick to state and county guidelines on proof.

“If we cannot support the gang affiliation in any way within five days, we are recommending they be stepped down,” said Simmons, who personally reviews the MS-13 cases at Yolo. “So if there is more information that they have that we don’t have, sorry.”

Cardall said he and staff members are using a trip to the East Coast this week to meet in person with social service providers and law enforcement in New York to gather more information on the situation.

“When we go back and talk with the federal government, we’re going to really let them know how they implemented their policy and how it affected us here in Yolo County,” said Cardall.

Watch UC Davis law students get hands on experience in the immigration clinic

UC Davis law student Apurva Behal has worked in the school's Immigration Law Clinic for the last year, representing clients as they fight detention and deportation. For Behal, the hands on experience that she has gotten has been an invaluable help towards her future career plans.

Emily Zentner The Sacramento Bee

Anita Chabria: 916-321-1049, @chabriaa