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This Article examines the issue of gang evidence through the lens of the law’s use of presumptions and the corresponding burdens of proof at play in immigration proceedings. In immigration law, most of the burdens of proof fall on noncitizens. These burden allocations allow adjudicators to readily accept the harmful presumption contained in the gang evidence — that urban youth of color are criminals and likely to engage in violent crime associated with gangs. This Article seeks to explain how this racist assumption led to the creation of a gang database, and proposes an evidentiary presumption that the gang evidence is not reliable, in order to specifically instruct the judge to reject the presumption society has put in place about urban youth of color and criminality. In this way, this Article tracks common interests of critical race theory, by explaining how U.S. society has subordinated people of color in the creation of gang databases, and seeking to not only understand, but change this bond between law and racial power.

Part I explains the justifications for why gang databases exist, using the creation of Boston’s Gang Database as an example. Following the lead of critical race theorists, this Part asks whether there is a counter-account of the social reality in Boston that led to the creation of this database. This Part then discusses various forces that gave rise to its creation: the segregation and concentration of poor people of color in certain neighborhoods; the diminishing social services in these neighborhoods, which gave rise to the police acting as the primary social workers, all the while surveilling young men of color; the extraordinary powers granted to the police to surveil and control these young men; and the labeling of a dangerous minority whom the government can eradicate through detention and deportation. Part I also explains how local anti-gang efforts became part of a national immigration enforcement agenda. Part II discusses burdens of proof in the law and how the burdens operate in immigration cases to validate harmful presumptions that a young man of color is a gang member. Part III proposes the creation of an evidentiary burden that gang evidence is unreliable in immigration cases and explains how that burden can counteract the harmful presumptions contained in the gang evidence.


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25 May 2023
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  • Subject
    • Criminal Law

    • Evidence

    • Immigration Law

    • Law Enforcement and Corrections

    • Race and Ethnicity

  • Journal title
    • Brooklyn Law Review

  • Volume
    • Forthcoming

  • Date submitted

    25 May 2023