When the Trump administration essentially disappeared 238 Venezuelan men (and potentially women) living in the United States to a prison in El Salvador earlier this month, it alleged they were members of a Venezuelan gang. Administration officials declared with certainty that these men belonged to the Tren de Aragua gang, boasting on social media alongside dehumanizing propaganda from Nayib Bukele, El Salvador’s president. Trump administration officials argued that the Alien Enemies Act of 1798, the legal authority they invoked to pull this stunt, allowed them to remove these men from the country without being required to substantiate their accusations before any court of law.
While these brazen acts face ongoing legal challenges in the federal courts, the stories illuminating the innocence of many of these men are piling up. There’s the Venezuelan LGBTQ makeup artist with no criminal record but a set of aesthetic tattoos used by U.S. Immigration and Customs Enforcement (ICE) as pretext for his alleged gang membership, according to his lawyer. She was prepared to mount a case with overwhelming evidence that he has no such ties, but she never got the chance before the administration disappeared her client. And there is the professional soccer player who fled his home to seek safety in the United States after being detained and tortured by the government of Venezuelan President Nicolas Maduro. According to his lawyer, he also has no criminal record, and his tattoo is of a soccer logo. Both men and several others claim their full innocence and apparently have proof to show it.
What makes matters worse: experts say that tattoos aren’t even a symbol of membership in Tren De Aragua.
Trump’s invocation of the Alien Enemies Act as a basis for these unjust removals is unprecedented, but it is by no means unprecedented for the U.S. government to use sham gang allegations to detain and deport men from Central and South America who pose no public safety risk. In fact, there is a long history of immigration agencies using tattoos and a set of notoriously flawed gang databases to bring false or weak claims of gang involvement. As shocking as it is to watch possibly innocent people dramatically flown to a notoriously horrific prison in El Salvador, we probably wouldn’t be seeing this intensity of thuggish government conduct emerge so quickly under the second Trump administration if unsubstantiated gang allegations hadn’t been tacitly tolerated for years across prior administrations, Democratic and Republican both.
No Standard for Proving Gang Membership
The use of gang allegations is endemic to the immigration system. The Department of Homeland Security (DHS) has relied on accusations of gang membership to deny “relief” to non-citizens facing removal, reject applications outside of court proceedings for protections such as asylum or lawful permanent status, and as ground for targeting certain people for immigration arrests and high-security immigration detention.
Despite this pervasive use, there is no language anywhere in the Immigration Nationality Act or its accompanying regulations that explains what constitutes a “gang” or what defines “gang affiliation.” There is no established standard to assess whether evidence presented is sufficient to establish involvement or affiliation with a gang, or even publicly available guidance on what evidence is appropriate.
On top of this silence in the laws, immigration proceedings already lack formal rules of evidence and many of the usual procedural protections offered in the criminal legal system. This keeps the door wide open for immigration officials to use a broad and largely uncontestable interpretation of the term “gang” as they see fit and offer flimsy or false evidence of gang involvement in support of their claims.
In 2017, U.S. immigration officials arrested and detained a 16-year-old boy in Long Island, N.Y., claiming he was a member of the MS-13 gang. They based their accusation on their observations of the young man in school and walking home with other people they “believed” to be MS-13 gang members, in addition to observing him scribble “503” in a notebook—numbers the agents considered a gang symbol, but, in fact, represents the country code for El Salvador, the boy’s home country. Since he was an unaccompanied minor without status, the immigration agents could detain him for months, moving him through three facilities, without ever having to prove the allegations used for his initial arrest.
His case was later included in an ACLU lawsuit against the first Trump administration for using unsubstantiated gang affiliation claims to unlawfully target for arrest and detention dozens of male teenagers. A federal judge’s order in the case would lead 35 of these children to receive basic due process hearings to refute the government’s allegations and at least another 30 to be immediately released because the government’s evidence of gang affiliation was essentially non-existent.
Although the lawsuit brought relief for these teenage boys, DHS’s reliance on flimsy gang allegations continued unabated. Latino men who lived in low-income neighborhoods that had any sort of gang activity became an easy target for such sham allegations. In one case, a local cop in a routine police report stated as an aside that he saw a kid “loitering in parking lots with known members of the ‘Perros Salvajes’ gang in Louisiana.” An immigration judge years later used this statement as the primary evidence to conclude the young man was involved in gangs, denying him relief, and ordering his deportation. While in a regular criminal court such a report would fail the basic hearsay rules, in the immigration proceeding where no such rule exists, the report was taken as incontrovertible; and the young man had no chance to cross-examine the reporting officer since Sixth Amendment confrontation rights also don’t apply in non-citizen proceedings.
These examples are by no means the exception. A survey of legal service providers conducted in 2017 showed that police reports, tattoos, and social media posts are commonly used as primary evidence in gang allegation cases. In one instance, an immigration agency denied a person seeking “U-Visa” protection—granted to some non-citizens who are victims of a crime—based on social media posts that the agency claimed showed “gang clothing” and “gang hand signals” with no other evidence or explanation.
Unreliable Databases
The most common basis for accusations of gang membership are gang databases, shared law enforcement indexes that track alleged gang affiliations and include personal details such as address, photos, and nationality of persons suspected, but not necessarily convicted of anything. Such databases have been criticized for having vague criteria for designations of gang involvement, a lack of oversight and review, and minimal transparency or notice to those designated. Once someone is entered into one of these databases as affiliated with a gang, they are likely stuck with that designation indefinitely.
Immigration officials regularly use these databases to make allegations that have life-altering consequences. The origins of this practice date back to the administration of President Barack Obama when immigration officials were given a mandate to deport high numbers of non-citizens with criminal records. Commonly used databases include the privately owned GANGNet, the FBI’s National Crime Information Center, and the notorious CalGang—a California gang database revealed in a 2016 audit to contain inaccuracies including 42 people who were less than one year old when their information was entered, in addition to its use by local police to frame innocent people. Although the state legislature temporarily halted use of the database, nothing was done to redress the irreparable harms imposed on the people previously detained and deported based on this flawed information.
Such data inaccuracies led Wilmer Catalan-Ramirez—a longtime Chicago resident who fixed trailers at a local repair shop—to get caught in ICE’s gang dragnet in 2018. ICE agents stormed into his home, threw him to the ground despite his partially paralyzed status, and dragged him away based on information they found via local police databases connecting him to a local gang. Wilmer landed in a hospital for his ICE-inflicted injuries, then a detention center for 10 months until he was finally released after being given the rare opportunity to prove the falsity of the agency’s claims and sue them for the mistake.
No Chance for Rehabilitation
The over-broad and ill-defined evidence immigration agencies employ to allege gang affiliation has led to the worst harms of detention or deportation for people such as Catalan-Ramirez, who have no ties whatsoever to gangs even if they lack proper immigration status. This lack of standards also means people who once participated in a gang, but have since renounced that affiliation, are forever punished. Although membership should be treated as a transitory status (you can be a member of something one day and not the next), in the world of immigration, once a gang member, always a gang member—regardless of any life changes or rehabilitation.
This played out in perhaps the cruelest way for Walter Cruz Avala who bears on his chest the letters M and S—a tattoo that he got as a teenager in San Francisco under the direction and near-coercion of the top U.S. government informant in an ICE operation against the gang MS-13. This same informant would later admit that he committed a series of murders before the U.S. government hired him for this inside-work of convincing young boys to brand themselves in a pledge of loyalty to a criminal organization. But Cruz-Zavala—after spending several years in prison for his involvement in the gang—decided to start a new life chapter. At age 21, upon his release from prison, he renounced his gang ties and left MS-13 behind, eager to rebuild his life despite its early traumas.
But to ICE—once a gang member—always a gang member. Nearly 10 years later, it would be that same tattoo the U.S. government informant pressured him to get that would serve as a primary reason for ICE to aggressively pursue Cruz-Zavala’s deportation to his home country El Salvador—where he was certain to face imprisonment or death at the hands of a gang he had so clearly renounced as a young man.
Even with a zealous and sophisticated lawyer, Cruz-Zavala was unable to loosen the noose of the gang designation that the U.S. government so boldly tied around him. He’s not alone. Hundreds of other men are perishing today in an El Salvador prison, labeled as gang members or gang affiliated but this time with the U.S. government presenting almost no evidence at all.
The dehumanizing video footage posted on X by Bukele— with images of these men being marched in shackles under bright lights with dogs watching as prison guards shaved their heads —represents the egregious final step in what has been many years of devolving due process in the U.S. immigration system. Although many faced deportation based on unsubstantiated gang allegations long before these men were forced onto planes, the Trump administration has taken these longstanding and unchecked failures of the U.S. immigration system to their extreme.