U.S. Attorney General Jeff Sessions speaks at the International Association of Chiefs of Police conference Monday, Oct. 23, 2017, in Philadelphia. Sessions on Monday designated the gang MS-13 as a “priority” for a federal task force that traditionally pursued cartels and drug kingpins. Michael Balsamo AP
U.S. Attorney General Jeff Sessions speaks at the International Association of Chiefs of Police conference Monday, Oct. 23, 2017, in Philadelphia. Sessions on Monday designated the gang MS-13 as a “priority” for a federal task force that traditionally pursued cartels and drug kingpins. Michael Balsamo AP

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Court rules feds can’t hold group of immigrant minors on gang allegations without access to a judge

By Anita Chabria And Nashelly Chavez

achabria@sacbee.com

November 22, 2017 03:26 PM

UPDATED November 22, 2017 05:47 PM

A federal court ruled this week that a group of undocumented children jailed in Yolo County and elsewhere must be given access to a judicial hearing and other due process rights if the government wants to keep them incarcerated.

On Nov. 20, the U.S. District Court for the Northern District of California issued a preliminary injunction in a case filed in August by the American Civil Liberties Union Foundation of Northern California, the University of California Immigration Law Clinic and others on behalf of undocumented teenagers who crossed the border alone and are being held in high-security immigration detention on criminal or gang allegations without having their cases reviewed by a judge.

U.S. District Judge Vince Chhabria wrote in a 44-page decision that “The minors and their sponsors have the right to participate in a prompt hearing before an immigration judge in which the government’s evidence ... is put to the test.”

The ruling comes in a class action lawsuit filed against the federal government on behalf of a group of Central American teenagers who were detained as part of a broad law enforcement crackdown of MS-13 gang members in Long Island. President Trump has made eradicating the gang a priority. In an action dubbed Operation Matador, multiple law enforcement and government agencies detained or arrested 39 suspected MS-13 members in June.

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MS-13 is an extremely violent Central American group that has been connected to multiple brutal murders in New York state.

Some of those arrested were teenagers that the ACLU maintains were unfairly swept up in the broad action with little hard evidence connecting them to the gang.

Some of those teens had been shipped from the East Coast to high-security youth detention facilities in Staunton, Va., and Yolo County without knowing why they were arrested, knowing the evidence against them or being able to plead their case in front of an impartial judge, said Julia Mass, one of the lead attorney’s for the ACLU.

“It’s a big win for the due process rights of our clients,” said Bill Freeman, another ACLU lead attorney on the case. “They now get the opportunity to challenge their detention, which they didn’t have before. The government has to show why … the child should now be locked up.”

The injunction covers more than just the clients who sued. The judge created a nationwide class of immigrant children in similar circumstances and has given the government until Nov. 29 to provide a hearing for those currently in custody and provide hearings within seven days of detention moving forward.

Mass said it was unknown how many teens fit that description, but said the ACLU had requested a list from federal authorities.

Victoria Palmer, spokeswoman for the Administration for Children and Families, U.S. Department of Health and Human Services, which oversees detention of unaccompanied minors, said “(a)s a matter of policy, HHS does not comment on pending litigation.”

One of those detained – and the first one to gain a hearing and subsequent freedom under the ruling – was identified in court documents as “F.E.” In an interview with The Bee on Tuesday, “F.E.” asked to remain anonymous and chose the nickname “Percy” to be identified as, drawing from a literary character in the “Percy Jackson and the Olympians” young adult books he reads.

Percy was detained for nearly six months with no way to challenge the detention prior to the injunction. Monday, he became the first teenager to win freedom under the new rules.

Percy was living in Suffolk County, N.Y., with his mother when he said he was arrested for disorderly conduct in June for play-wrestling with a friend after a soccer game. Percy said he was walking home with the friend when another schoolmate, whom the two were not friends with and did not associate with, was tackled by police while riding his bike ahead of them. Police then stopped Percy and his friend and arrested them, telling the boys they were going to jail because they were acting “stupid,” Percy said.

He was released on bail but said days later the arresting officer came to his home and said “he had to turn me into immigration,” Percy said. Percy denied ever being affiliated with a gang. Percy said he was 15 when he crossed the border alone to escape threats from gangs in his native El Salvador.

Suffolk County police did not immediately respond to a request to clarify their policy on interacting with undocumented residents or cooperating with immigration authorities.

The officer transported Percy into immigration custody, he said, beginning a five-month ordeal in which the 17-year-old was placed in a high-security youth detention facility in Virginia, a facility in Fairfield and a shelter in New York.

Percy said while in detention, “ “I (would wake) up in the middle of the night and would ask ‘when will I get to leave? ... I would cry.”

During that time, immigration authorities claimed Percy was a gang member with MS-13, but his attorney, Brian Johnson, said the evidence was a scrap of paper with “503” written on it, both the country phone code for El Salvador and an MS-13 symbol, and “second and third-hand hearsay” of gang contact.

Monday, a judge ruled the evidence was not enough to keep him in detention and he went home to his mother and younger brother.

Anita Chabria: 916-321-1049, @chabriaa