Brooklyn Law Review


Mary Holper


This article examines evidence that the government presents in deportation proceedings against young men of color to prove that they are gang members. The gang evidence results in detention, deportation, adverse credibility decisions, and denial of discretionary relief. This article examines the gang evidence through the lens of the law’s use of presumptions and the corresponding burdens of proof at play in immigration proceedings. The immigration 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. The 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 immigration adjudicator to reject the presumption society has put in place about urban youth of color and criminality. In this way, the article tracks common interests of critical race theory, by explaining how US society has subordinated people of color in the creation of gang databases, and seeking not only to understand, but to change this bond between law and racial power.