Following through on his campaign promise of “zero tolerance” for “criminal aliens,” President Donald Trump issued an executive order on January 25 signaling his immigration priorities. A pair of memos released this past weekend reveal how Homeland Security Secretary John Kelly will execute Trump’s orders: by broadening the pool of immigrants prioritized for removal, speeding up deportation hearings, and enlisting local law enforcement to increase Trump’s deportation force.

Priorities for deportation include those who have been convicted of a criminal offense; those who have an unresolved charge of a criminal offense; and those who have committed acts that constitute a chargeable criminal offense.

But even before the memos were revealed, Trump’s orders began to take shape when Immigration and Customs Enforcement (ICE) carried out a series of nationwide sweeps, detaining nearly 700 undocumented immigrants. Fact sheets prepared by ICE characterized all who were detained as “criminal aliens,” “illegal re-entrants,” and “immigration fugitives.”

Daniel Ramirez Medina doesn’t meet any of these criteria, yet he has been in a prison-like detention center since February 10.

His case sheds light on the many challenges facing the immigrants’ rights movement, including the targeting of people who are not serious criminals and the prioritization of those ordered to be deported. It also raises concerns many in the movement have flagged before, issues surrounding detainment and deportation as “cruel” systems that shouldn’t be ignored in larger conversations around immigration.

While many have dismissed Trump’s experience and judgement on these issues, advocates who spoke to Rewire assert that the president is being “smart and strategic” in his approach to detainment and deportation. The White House has repeatedly pushed the narrative that all undocumented immigrants are criminals, and ICE has painstakingly detailed the supposed crimes committed by those targeted in public sweeps on immigrant communities nationwide. At this point, actual criminality stops mattering. Trump is creating an environment in which immigrant status and criminality are conflated, making every undocumented immigrant (including non-targeted people) an enforcement priority.

Insufficient Evidence

Ramirez Medina, who appeared in court Friday for a status conference, made national headlines and brought advocates to the streets in emergency protests last week. The 23-year-old father is a Deferred Action for Childhood Arrivals (DACA) recipient—the Obama-era immigration policy that let young undocumented immigrants who meet specific requirements receive a work permit and authorization to stay in the United States, renewable every two years. According to his attorneys, Ramirez Medina first received DACA in 2014 and had it renewed on May 5, 2016, meaning he should be protected from deportation until May 2018.

But on February 10, ICE agents arrived at his Washington home with an arrest warrant for his father. When the immigration agents encountered Ramirez Medina, according to a lawsuit filed on his behalf, they asked him if he was “legally here.” He informed the agents that he had DACA, but they detained him anyway.

In ICE’s account of what transpired, Ramirez Medina said to an agent that he “used to hang out with” and “still hangs out with” members of two gangs. Mark Rosenbaum, one of his attorneys, said in a statement that this is false and that his client “did not say these things because they are not true.” Even if they were true, Rosenbaum said these claims “still would not be sufficient evidence” that Ramirez Medina is a “threat to the public safety or national security.”

Ramirez Medina alleges that the questioning about gang affiliation did not happen until after he was arrested, and his attorneys claim that ICE officials altered a document he submitted requesting a transfer out of his unit at Northwest Detention Center in Tacoma, Washington.

On Thursday, the U.S. Department of Justice had to defend why Ramirez Medina remains in custody. The only corroborating evidence ICE offered for its assertion he is in a gang, besides the supposed confession, comes in the form of his tattoo. The Seattle Times reported that the tattoo on Ramirez Medina’s forearm says “La Paz BCS,” which Ramirez Medina argued is not gang-related. “Paz“ means “peace” in Spanish and according to the DACA recipient, “BCS” is a reference to Baja California Sur, the area of Mexico where he was born.

As Ramirez Medina’s fate in this country hangs in the balance, many are raising questions about ICE detaining a DACA recipient on the basis of supposed gang ties. But for advocates active during Obama’s presidency, Trump’s orders only pick up where Obama left off. 

Enforcement in Practice

Much has been written by media outlets about how the definition of a “criminal” may expand under Trump to qualify as many as eight million undocumented immigrants for deportation. “People act like we didn’t see this under Obama,” Viridiana Martinez told Rewire, referring to how the Obama administration altered the definition of criminal over the past eight years. “Not in executive orders, but in practice.”

Martinez is the co-founder of Alerta Migratoria, a grassroots immigrant rights organization based in North Carolina. She has spent the majority of her adult life organizing around issues that affect undocumented communities, with work that often involves bridging the gap between policy and practice.

“When people ask me about Trump’s executive orders or about who he’s criminalizing, I talk about Nestor’s case to show how these types of [executive] orders, no matter the administration, are just things said on paper. How they’re carried out is very different,” the organizer said.

Martinez is talking about the case of Nestor Avila, who graduated with honors from Appalachian State University with a degree in criminal justice. He has been detained in the Stewart Detention Center in Lumpkin, Georgia, since August, when he received his second DWI.

“The last memo from [former Homeland Security Secretary Jeh] Johnson said you were a priority if you were convicted of a [serious] crime—theoretically. That’s what was on paper. But you have people like Nestor, and plenty of people before him, who were never convicted of a [serious] crime and yet, they were detained under Obama,’” Martinez said. “So Nestor was screwed under Obama, even though on paper it said he was not a priority.”

For context, the Obama administration deported nearly 400,000 people per year during its first five years, according to the New York Times. Among those targeted for deportation were people who had committed minor offenses like shoplifting. This approach led to an 87 percent increase in deportations of “convicted criminals” between 2008 and 2013 as a direct result of the Obama administration’s widening of what constituted “criminal behavior.”

As FactCheck.org explained, “the 87 percent increase in the deportation of ‘convicted criminals’ was driven almost exclusively by ‘those with a traffic violation (up 191 percent) and individuals convicted of immigration offenses (up 167 percent).’” Immigration offenses could mean overstaying a visa or entering the country improperly.

In 2013, the Obama administration shifted its focus to undocumented immigrants who had been convicted of “serious crimes,” those who were considered national security threats, and recent arrivals—meaning people who had committed no crime other than entering the country without citizenship status.

Now in the Trump administration, undocumented individuals can be taken into custody if authorities believe they’ve committed a crime or for an alleged gang connection, as was the case for Ramirez Medina.

“The Gang Member Defense”

In June 2016, then-President Obama reiterated that his administration would continue to focus on apprehending gang members. “We prioritize criminals, we prioritize gang-bangers, we prioritize folks who have just come in,” he said. Lacking status in this country and being accused of being in a gang carries very serious implications because of a 2014 memorandum from DHS, as noted by Vice’s Aviva Stahl. Non-citizens with gang-related convictions—”aliens who intentionally participated in an organized gang to further the illegal activity of the gang”–became top priority for deportation.

Thus, accusing an undocumented person of gang affiliation is the quickest way to get them arrested—and in Ramirez Medina’s case, get his DACA status revoked. (His attorneys are arguing that it should not have been revoked because he was detained unlawfully.)

One report by the University of California, Irvine School of Law outlines the very real consequences of alleged gang membership and how undocumented immigrants are often wrongly labeled as gang members for subjective reasons.

“ICE has always used the gang member defense. I’ve heard that many, many times in cases I’ve worked,” Martinez told Rewire. “Whenever you get arrested and processed, they check you for tattoos. Depending on what tattoos you have, automatically they’ll categorize you as a gang member.”

The organizer said that while working on cases under the Obama administration, she had phone calls with Robert Alfieri, assistant field office director at ICE’s Charlotte location, about why people remained detained that, according to the current law, shouldn’t have been.

“He would say they were a gang member and when I would ask how that was determined, he’d say they admitted it,” Martinez said. “That just wasn’t true, and why would someone admit that? What prompts an ICE officer to ask, ‘Are you a gang member?’ I’ve never been asked that and I’ve been arrested several times [for actions].”

The gang narrative is woven once ICE agents spot a tattoo, Martinez said. Another attorney representing Ramirez Medina, Kathryn Eidmann, added that she won’t speculate on ICE’s motives for saying someone is a gang member with shaky evidence, “but it appears ICE is trying to build their case post-facto.”

This would explain why before Trump took office, advocates in some states were trying to block federal access to states’ gang databases. Yvette Cabrera of the Voice of OC reported in December that they were doing this “out of fears that the Trump administration will use it to deport unauthorized immigrants who’ve been erroneously labeled as gang members.”

As Rewire previously explained, there are local, state, and federal gang databases—and then some. The National Gang Unit of Homeland Security Investigations (HSI) forges partnerships between ICE and local law enforcement. Through this arm of ICE, local and state law enforcement agencies work with HSI to locate and, in many cases, deport suspected undocumented gang members.

There are also gang databases maintained by ICE and the states. As Ali Winston reported in a November article at the Intercept, “ICE’s system contains an unknown number of people, but there are more than 250,000 people in California’s and Texas’s gang databases alone, the majority of whom are Latino. These databases are populated with intelligence from street stops and arrests by local police, which is then uploaded and shared between agencies.”

State-level gang databases can vary considerably from community to community and state to state, mostly because law enforcement in the United States is decentralized. But state gang databases have controversial track records.

A recent audit of California’s CalGang database revealed rampant flaws, including the inclusion of 42 toddlers. There’s also the fact that it contains information that may violate privacy rights. And auditors found instances in which local law enforcement added people to the database “without adequate evidence, failed to purge CalGang records that had not been updated within five years, and poorly implemented a state law requiring that juveniles and their parents are notified before the minor is placed in the database,” reported Cabrera.

Local law enforcement can enter people into their state’s gang database for subjective reasons, like tattoos. To be entered into the database in California, for example, one must only meet two out of ten criteria, putting people who are not “criminals” or gang members in direct threat of deportation.

“Cruel and Unusual Punishments”

Under the Obama administration, undocumented immigrants who had been in the criminal justice system were prioritized for deportation, which is just one example of how intertwined the immigration and criminal justice systems have become. As Rewire reported back in January 2016, deportation is no longer separate from the criminal system; deportation is just an extension of mass incarceration.

This is part of the reason Ramirez Medina’s case is so complicated. According to local reports, with his DACA revoked—unlawfully, his attorneys claim—it was unclear to the judge where the 23-year-old should even be held: jail or immigrant detention.

What’s missing from these larger conversations around criminalization, Martinez said, is the understanding that detainment and deportation are “cruel and unusual punishments” and that even undocumented immigrants who’ve been in the criminal justice system don’t deserve to be rounded up by ICE and deported.

“It’s so crazy to me that we know everything about Daniel’s case and we don’t know what happened to his dad, who they were there to get,” Martinez said. “I’m not belittling what happened to Daniel. It’s horrible and it shouldn’t have happened, but his dad matters too.”

When asked about Ramirez Medina’s father, the 23-year-old’s legal team told Rewire they are not aware of his status.

“Immigrants who experience even the slightest brush with the criminal justice system, such as being convicted of a misdemeanor, can find themselves subject to detention for an undetermined period, after which they are expelled from the country and barred from returning,” noted the American Immigration Council on its website. “In other words, for years the government has been redefining what it means to be a ‘criminal alien,’ using increasingly stringent definitions and standards of ‘criminality’ that do not apply to U.S. citizens.”

And now under Trump’s executive orders, immigrants can be ordered deported regardless of whether or not they’ve actually been charged or convicted of a crime or admitted to any wrongdoing. In this environment, mass detainment—particularly of groups previously protected from deportation, including mothers, vulnerable transgender domestic violence survivors, and DACA recipients—becomes justifiable.

For detained people with criminal records, the circumstances become more dire. Many of the cases Martinez has worked on were for undocumented immigrants who had been in the criminal justice system. The organizer said these are the toughest cases, both legally and in terms of getting public support. “These are the narratives that get swept under the rug,” she said.

Undocumented immigrants detained for receiving a DWI, for example, often go unhelped because their cases—and their experiences—challenge the “DREAMer narrative” tied to DACA recipients. Writing for the Huffington Post, undocumented activist Jonathan Perez outlined how “DREAMer” had become “an exclu­sive term” for “ model res­i­dents,” a way for people to throw criminals and undocumented parents under the bus.

“The reality is that nothing is black and white,” Martinez said. “It’s not fair to only prioritize certain people when everyone is under attack.”

“I really question why people think immigrants with records should be deported, ripped away from their families, when Americans who have the same records are given a slap on the wrist,” she said.

As for Ramirez Medina, whether or not he’s a gang member may hardly matter. He was arrested unlawfully and remains in detention indefinitely.

“Trump is just keeping with his campaign promises to go after criminals, and that’s pretty effective because of the way people who are believed to be criminals get dismissed by everybody,” Martinez said. “Again, what’s happening to Daniel is wrong, but when it happens to other people who’ve just made mistakes, it’s wrong too.”