Xochitl Hernandez, a grandmother of four, is just one example of what can happen when deportations are linked to alleged criminal activity without any presumption of innocence.
When Xochitl Hernandez went to a visit a friend in Los Angeles' East Hollywood neighborhood last February, she expected to return home later that day. Then the LA Police Department came knocking—and with them, officers from Immigration and Customs Enforcement (ICE). Hernandez, whose five children and four grandchildren are all US citizens but is herself undocumented, was arrested and transferred into immigration detention.
ICE claimed that Hernandez was a gang affiliate and known gang runner—someone who relays goods and information on behalf of a gang. This charge, an unsubstantiated allegation seemingly based on the claims of a single LAPD officer, has kept Hernandez locked up for months, and may result in her deportation from the only country she has truly known.
Hernandez's case is just the tip of the iceberg. Earlier this summer, President Obama reiterated his administration's focuses for removals: "We prioritize criminals, we prioritize gang-bangers, we prioritize folks who have just come in," he explained. "What we don't do is prioritize people who have been here a long time, who are otherwise law-abiding, who have roots and connection in their communities."
But for people like Xochitl Hernadez, Obama's call to deport the most dangerous—and spare those with roots and families—is not nearly as straightforward as it may seem.
According to California attorney Jordan Cunnings, who is representing Hernandez pro bono, Hernandez was visiting a friend's house when LAPD officers arrived to serve a gang-related robbery warrant. Two agents from Homeland Security Investigations (HSI), an investigative arm of the Department of Homeland Security, had tagged along with the apparent permission of the police, according to an affidavit shared with VICE.
Hernandez was taken into custody at the request of HSI, although she had no connection to the warrant or suspected involvement in criminal activity, and was then transferred into ICE custody. In early March, according to Cunnings, the prosecuting attorney for DHS reached out to the LAPD about the raid, to ask if they had any information about whether or not Hernandez was a "runner" for the gang.
It was a query that carried serious consequences. Under a 2014 memorandum, DHS committed to exerting prosecutorial discretion over a wide range of immigration enforcement decisions. Priority 1 cases for removal were restricted to non-citizens with gang-related convictions—"aliens who intentionally participated in an organized gang to further the illegal activity of the gang"—as well as suspected terrorists and people with felony convictions.
An LAPD officer said he'd seen Hernandez multiple times around the same location, but that "she'd always evaded [the police]," according to an email exchange seen by Cunnings. He also said he might have previously witnessed Hernandez hiding a gun for suspected gang members, although he stated he never actually saw the weapon.
ICE took his allegations seriously. At a hearing shortly after, where the same officer was called to testify, the judge found her alleged gang associations made Hernandez a flight risk and set her bond at $60,000—a sum many times what it might otherwise have been given her minimal criminal record, which included only a decade-old shoplifting conviction for which she served a single day in jail.
"They're saying that [Hernandez] being in a house with people who LAPD asserts may have been gang-affiliated—without any other evidence—is enough to make her a priority for deportation," said Emi MacLean, a staff attorney with the National Day Laborer Organization Network (NDLON), an alliance of community-led organizations that organizes around immigration issues and is assisting in Hernandez's case. "That is an egregiously expansive reading [of the memorandum], but that's what's happening."
When it comes to being deported under priority 1, there is no requirement to be charged with, much less convicted of any gang involvement. The LAPD has subsequently told Cunnings and another attorney that the officer's statements were purely speculative, according to an affidavit seen by VICE, and that they had no record of Hernandez being involved in any gang activity or listed on any gang databases. In an email to VICE, Western Regional Communications Director Virginia Kice confirmed that after a "comprehensive review" of Ms. Hernandez's history, ICE had "declined to exercise prosecutorial discretion in the case and placed her in removal proceedings." Kice also corroborated that Ms. Hernandez bond had been set at $60,000.
Hernandez's case is just one overt example of what can happen when deportations are linked to alleged criminal activity, without a presumption of innocence. At first glance gang databases, which are developed largely be local police forces, offer a more tangible and straightforward measure of alleged gang involvement. Yet in many cities, people can be added to the list with only the most tenuous or circumstantial links to criminal activity.
Sean Garcia-Leys, a student at the University of California Irvine School of Law, recently wrote a report about allegations of gang membership and their immigration consequences. "The determination of whether or not someone is a gang member is so subjective and the threshold for criteria is so low as to be virtually useless," he told VICE. In California, one out of every 40 boys and men of color between the ages of 15 and 34 is documented as a gang member in the state's database, known as CalGang, according to Garcia-Leys's report.
As such, Obama's efforts to protect certain immigrants has endangered others swept up in the criminal justice system. "When you hear talks about immigration reform, it often assumes the existence of some sort of clear bright line between individuals who are not 'criminals' and individuals who are," explained Jennifer Chacón, a professor at Irvine's School of Law and an expert on the intersection of criminal procedure and immigration law. "All of the conversations in the criminal justice sphere about how that line can be blurry, arbitrary and problematic are not usually part of conversations around immigration law reform."
Since Hernandez's family can't afford bond and ICE is unwilling to approve requests for release on other grounds, she has spent the past six months in detention at the for-profit and allegedly abusive Adelanto facility. Her family has suffered, too: Hernandez was the primary caretaker for her young daughter and aging mother, and her other daughters, who relied on her for childcare, have also been left struggling.
As a last-ditch effort, Hernandez's lawyers are hoping to get her a special visa for victims of crime, since she is a domestic violence survivor. This visa would give her legal immigration status in the US and save her from deportation. But the processing time could take months, and if Hernandez is issued a final order of removal in the meantime, she could be sent back to Mexico, a country she left when she was just 11 years old.
At Adelanto, Hernandez is having a difficult time. "She's very isolated from community support and from her family," Cunnings told VICE.
NDLON, meanwhile, has started a petition calling for Hernandez's release from detention.
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