RAMON AREVALO LOPEZ arrived in the United States when he was 17 after fleeing gang violence in his native El Salvador. As is procedure when minors enter the country unaccompanied, the Border Patrol turned him over to the Office of Refugee Resettlement, which then released him to the custody of his mother in New York while his civil immigration case moved through the courts.
For nearly 10 months, Lopez, who has no criminal record in the U.S. or El Salvador, lived with his mother and older brother on Long Island, where more than 8,000 unaccompanied minors like him have been resettled since 2014. He filed for asylum, enrolled in high school, and appeared for all his court hearings. Then, last October, Immigration and Customs Enforcement agents showed up at his home, detained him, and sent him to the Bergen County Jail in New Jersey, where he spent eight months living among the jail’s general population before being released earlier this month. Officials accused Lopez of gang affiliation — the blanket allegation that has become the administration’s default justification for its draconian immigration crackdown. The judge in the case saw no evidence of the government’s claims.
Judges have increasingly pushed back against ICE’s allegations, and like Lopez, dozens of youth accused of being affiliated with gangs have recently been released, sometimes after months in detention. But Robert Sweet, the 95-year-old federal judge who ordered Lopez’s release, didn’t stop there: He issued a scathing, 46-page ruling rebuking the government’s abuse of due process and taking pains to obliterate, one by one, any arguments that Justice Department lawyers might make in response.
“Ours is a government of laws, not of men,” Sweet wrote in the ruling, quoting John Adams. Then, quoting Thomas Jefferson, he stressed that the law “secures every man here, alien or citizen, against everything which is not law.”
The government, Sweet noted, violated the Trafficking Victims Protection Reauthorization Act, which requires that those who enter the U.S. as minors, even when they later turn 18, be held in the “least restrictive setting” possible; the Administrative Procedure Act, which protects against agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; and the Constitution — specifically, the Fifth Amendment’s due process clause.
“I did what I thought seemed appropriate under all the circumstances and filed the opinion to explain why,” Sweet told The Intercept, citing the case’s complex set of relevant statutes. “I spent 46 pages trying to work my way through all of that and I wouldn’t change any of that. … I wanted to explain as carefully as I could why I was reaching the conclusions that I did.”
“History will teach whether it has any long-term significance, who knows.”
Misleading references to the law have played a central role in the Trump administration’s war on immigrants. Top administration officials, for instance, repeatedly and falsely claimed that the law requires the government to separate those crossing the border illegally from their children (it doesn’t). Following an intense backlash and scrambling to execute a “zero tolerance” policy that is fraught with legal and moral challenges, Trump administration officials then indicated they might violate a legal settlement that prohibits the detention of children, with their families, for more than 20 days. And Trump himself called for an abandonment of all law and due process, tweeting over the weekend that “when somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
Against that background, Sweet’s detailed ruling ordering Lopez’s release reads as a reaffirmation that “we’re not a lawless country,” said Gregory Copeland, a supervising attorney at Legal Aid’s Immigration Law Unit, who represented Lopez. “It’s a condemnation of lawlessness, of fake law.”
“You’ve got Kirstjen Nielsen saying we’re enforcing the law, you’ve got all these people saying they’re enforcing the law, and if you look at the first two pages of this decision, [the judge] talks about things pretending to be law that aren’t law,” Copeland added, referring to the secretary of Homeland Security, who oversees immigration enforcement. “This judge’s ruling is such a condemnation of the arrogance of the Department of Homeland Security. … He’s just not pulling any punches.”
Predetermined Narrative of Criminality
Lopez’s story is a familiar one on Long Island, where dozens of youth, many of whom arrived in the country as unaccompanied minors, have been summarily accused of gang affiliation and shipped to detention centers, sometimes on the other side of the country. As The Intercept has reported, allegations of gang affiliation can be based on anything from a Lady Gaga T-shirt, to a doodle scribbled in a notebook, to having lingered too long in a hallway that school officials have deemed to be gang territory. In Lopez’s case, a public records request filed by his attorneys revealed that the evidence the government relied on to label him a “confirmed” gang member was social media posts and the fact that he had been observed “associating” with others also accused of being gang members and in a location officials thought to be frequented by gangs.
ICE did not respond to a request for comment. The U.S. Attorney’s Office for the Southern District of New York, which represented the government, declined to comment.
“In its haste to validate a predetermined narrative of criminality and gang association, our government railroaded a child, his family, and the court system,” Andrew Free, a Tennessee-based immigration attorney, told The Intercept. “Our independent judiciary is designed to serve as a check against these abuses. In this case, the system worked.”
In fact, Sweet’s biting condemnation of immigration officials’ actions in this case have armed attorneys with arguments and precedents they can turn to as they represent other youths fighting similar allegations and detention.
“The government is trying to frame the terms of the debate,” Andrea Sáenz, a supervisor in the immigration practice at Brooklyn Defender Services, told The Intercept. “They’re trying to tell you who these people are. They’re trying to say, ‘You know, you don’t need to care about immigrants because they’re not like you, and they’re dangerous, and they’re gang members, and they’re not real asylum-seekers.’”
“We need judges like this to say, ‘We need to look behind the words to who is it that you all locked up?’”
“One reason I’m really happy about this decision is because we finally get some independent federal court review,” she added. “Judge Sweet says, ‘This is not even probable cause.’ He’s like, ‘What you’re asserting against this young man is not evidence.’ I hope that that will empower other people to say, you know, just because the government says something, it doesn’t mean that it’s true.”
Reliance on Flimsy Evidence
As The Intercept has reported, Trump never mentioned MS-13 before he was elected and seemed to want to make Chicago, not suburban New York, the target of his tough-on-crime agenda. But starting last year, the gang — which was born in Los Angeles in the 1980s and only later took hold in Central America — became the scapegoat the administration turned to as it sought to justify everything from an expensive border wall to snatching babies from the arms of asylum-seekers.
“The Trump administration has taken a specific narrative course to elevate the status of MS-13 to a household name, responsible for invading armies of Central American migrants who are using supposed loopholes in immigration law to sow terror in the quiet American suburbs of Long Island,” a report published in May by the New York Immigration Coalition concluded. “The problem is that the threat of MS-13 is purposely exaggerated to manipulate support for unfettered immigration enforcement in the name of gang-policing, without addressing the effectiveness of such policies or their devastating consequences.”
The government needs no evidence of gang affiliation or criminality to place undocumented individuals in immigration proceedings — and local law enforcement agencies frequently refer individuals they cannot criminally prosecute over specific crimes to immigration officials who act with much looser evidentiary standards.
In practice, that means immigration officials routinely accuse individuals of gang involvement based on little or no evidence. A recent survey by the Immigrant Legal Resource Center found that officials’ allegations of gang affiliation in immigration proceedings are “tenuous and lack transparency.”
“Immigration law provides no clear definition of gang involvement and offers no rules of evidence in immigration proceedings,” the center noted, adding that “officials are often permitted to offer flimsy or false evidence of gang involvement based upon their own over broad and largely uncontestable interpretation of the term.” But even if false, gang accusations have a severe impact on accused individuals’ asylum cases, release from detention, and relief from deportation.
“HSI is just pointing a finger at a bunch of kids and saying, ‘gang member, gang member, gang member,’” said Copeland, Lopez’s attorney, referring to Homeland Security Investigations, the investigative branch of ICE. “All their gang criteria are pretty weak and should never be allowed to be the basis for depriving somebody, particularly vulnerable children, of their liberty.”
Already, the use of gang allegations to justify the prolonged detention of minors in the absence of criminality has faced a series of legal challenges.
Last August, the American Civil Liberties Union of Northern California filed a class-action lawsuit against top Trump administration officials for using unsubstantiated claims of gang affiliation to illegally detain minors in jail-like facilities thousands of miles from home. The case is ongoing, but in November, a federal judge ordered that any minors summarily accused of gang affiliation be given a hearing within a week of their arrest, as well as access to the evidence offered against them, and dozens were released as a result.
Then, in February, the New York Civil Liberties Union filed a separate class-action against the Office of Refugee Resettlement for “trapping immigrant children in prolonged detention,” often based on false or flimsy gang allegations. Officials accused the lead plaintiff in the case of having “gang tattoos,” for instance — when he had “no tattoos whatsoever,” the group wrote. In April, the NYCLU also sued Long Island’s Suffolk County Police Department after it failed to comply with a public records request filed eight months earlier regarding the department’s role in the identification, arrest, and detention of immigrant students accused of gang involvement.
“We continue to get reports of kids being approached, and even at times harassed, by law enforcement who are accusing them of gang involvement or who are trying to get them to give information about other kids,” Paige Austin, a staff attorney at the NYCLU, told The Intercept. “They’re not being transparent about what their policies are or about the number of kids impacted. That uncertainty contributes to a sense of terror in the community about unfounded allegations.”
Long Island’s large numbers of unaccompanied minors — and a streak of highly publicized gang-related murders that took place there in recent years — have made the New York suburban stretch a primary target of Trump’s crackdown on immigrants, and dozens of youth detained over gang allegations have come from there. But they, at least, are entitled to legal representation — last year, New York became the first state in the country to guarantee free legal services to undocumented immigrants facing deportation proceedings.
“We’re lucky here in New York because we have a universal representation program, and many of those providers are equipped to go to federal court,” said Austin. “It’s frightening to think of all the kids in this situation who don’t have that, and all the adults who also are subject to prolonged detention or whose parole has been denied without any process, and who don’t have the ability to access federal court and get a judge to write a long decision explaining why their situation is unlawful.”
While tens of thousands of undocumented immigrants continue to face immigration judges without attorneys, legal advocates have taken a number of individual and class-action cases to federal judges in an effort to block the Trump administration’s actions in court. In addition to gang allegations, judges have overseen legal challenges to the Muslim ban, detention conditions, and, more recently, the separation of asylum-seekers from their children. In many cases, they have ruled against the government.
“This is a particularly good decision, but I don’t think that Judge Sweet is unique in being frankly appalled at the government’s level of proof here, or just the callous way in which they treated the young man,” said Sáenz, referring to Lopez’s case. “I think a lot of federal judges are going to hold the government’s feet to the fire and say, ‘I’m going to enforce the Constitution. I don’t work for Donald Trump. I work for the Constitution.’”
“I don’t want to say litigation will save us, because I think that we’re under a lot of stress right now in terms of the rule of law,” she added. “But I feel pretty optimistic that litigation still matters.”