Defending against the Increasing Criminalization of
Our Immigrant Communities

Who We Are

The Problem

"Bustin' Out"

Immigrant Youth Justice Initiative (IYJI)

"Sentenced Home"

Additional Resources

Special Targeting of Noncitizen Youth

Perhaps the most disturbing evidence of the magnitude of these trends is the unprecedented targeting of noncitizen youth in the juvenile justice system.  The backlash against noncitizen youth, the most vulnerable of noncitizens, has taken various forms in the last few years. 

Since 2005, key members of Congress have aggressively pushed for various forms of criminal and immigration proposals that target suspected gang membership and so called gang-related activities, categories that include any noncitizen suspected of even tenuous association with a gang.  Also proposed was an expanded definition of a gang (e.g., any three persons involved in a criminal endeavor), enhanced criminal penalties, and imposition of new immigration penalties. The immigration penalties include deportation and ineligibility for most immigration benefits, including asylum and Temporary Protected Status for persons who will encounter persecution or disaster upon return to the home country.  Unfortunately, these provisions have the most impact upon noncitizen youth. 

For example, criminal bill S. 456 introduced by Senator Diane Feinstein proposed expansion of the definition of criminal gangs and the institution of severe criminal penalties for gang crimes, including enhanced criminal penalties for undocumented youth.  As proposed, the bill contained a provision that make undocumented youth convicted of committing a felony subject to a sentence of up to 30 years in prison, while a citizen sentenced for the same crime could receive a sentence of just over one year.  In addition, immigration reform legislation in the 109th and 100th Congresses included provisions that would target anyone the government has a “reason to believe” is associated with a gang or participated in gang activities, even without direct evidence that the person ever was a member or had any criminal record.  Despite these provisions failing to pass in the Senate, ICE continues to target through its Community Operation Shield initiative any youth they assume to be associated with a gang, in violation of immigration laws. 

ICE has also aggressively attempted to infiltrate the juvenile justice system to identify noncitizen youth subject for deportation.  Many juvenile justice decision makers mistakenly believe that they are required to cooperate with ICE and turn over noncitizen youth.  Local officials, such as police, probation officers, judges, and District Attorneys have been voluntarily employing the juvenile justice system as an avenue to enforce immigration laws and to collaborate with immigration officials against noncitizen youth.  The majority of these officials who are making decisions that impact immigrant youth for the rest of their lives have no knowledge of complex immigration laws.  Their practices and attitudes towards immigrant youth are heavily tainted by anti-immigrant bias.  More importantly, it is a clear violation of the clearly established priority of the juvenile justice system, which unlike the adult criminal system, is not to punish, but to rehabilitate and support the youth within it.  

Consequently, noncitizen youth not only face the disproportionate impact of deportation for themselves and their family members, but also disparate punishment within the juvenile justice system as compared with U.S. citizen youth.  Noncitizen youth are often subject to more severe dispositions and longer sentences in juvenile detention. They also are less likely to be granted probation and other community service programs in lieu of incarceration.  The following are two examples of this disparate treatment:

Example 1: A probation officer asked a 14-year-old noncitizen youth, who had been in the U.S. for 13 years with his family, to bring in his birth certificate with the goal of trying to determine his immigration status.  When the youth said he did not have it, the officer threatened to call the parents in to ask them about it.  With this threat and under considerable pressure, the youth admitted that he was born in Oaxaca.  The probation officer revealed this information to the judge, who then assumed that the youth was in violation of immigration laws based merely on his foreign birth, and on that basis alone detained him.  The youth spent time in state juvenile detention for the perceived immigration violation and ultimately was deported, although his family remains in the U.S.  

Example 2:  A noncitizen youth, who has been in the U.S. with his entire family from the age of 3, was charged with driving under the influence, the first offense he has ever been charged with.  Pending trial, he spent 42 days in juvenile detention.  The District Attorney offered a plea of reckless driving, with a condition of his plea requiring that he be released to immigration authorities rather than to his parents.  During the hearing, the youth’s public defender asked the judge to agree that if immigration authorities did not pick him up within 48 hours after the case was closed, in accordance with standing immigration law, he would be released to his family.  In order to ensure that immigration authorities would pick up this minor, the judge avoided ordering a disposition in the case, thus sending a child to juvenile detention for several more weeks over the holiday season to wait for immigration officials.  As a result, he spent more than twice as much time in juvenile detention than a U.S. citizen youth would have.  He now faces deportation from the U.S.