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Long IslandInvestigations

From a bad morning at school to ICE detention

Customs and Border Protection officers watch a house

Customs and Border Protection officers watch a house as Homeland Security Investigations ICE agents detain a suspected MS-13 gang member on March 29, 2018, in Brentwood.  Photo Credit: Getty Images/John Moore

One day in early 2017, F.E. overslept, missed his bus and arrived late at Brentwood High School, a series of mishaps to which he traces his later troubles.

He admits to having been an indifferent student. His grades were poor and his attendance spotty. But for F.E., being in high school at all was a minor triumph.

In 2014, at the age of 13, he had left his native El Salvador and crossed into the United States illegally, a journey he said was driven in part by threats from criminal gangs that had tried to recruit him.

After immigration authorities detained him briefly, F.E. — who asked to be identified by his initials, as he is in court papers — joined his mother in Suffolk County, a process known under federal law as reunification. He is among roughly 10,500 unaccompanied minors who have settled on Long Island since 2014, many fleeing poverty and violence in Central America.

At Brentwood High, F.E. was navigating a new language and country, as well the typical teenage travails. In his telling, he also faced the quandary of keeping MS-13 gang members at a distance while not offending them.

When he arrived late to school that day, F.E. said, a security guard stopped him in a hall because “he thought I was cutting classes.” The guard searched his book bag and found “a piece of paper from a homework where I had written 503,” the area code for El Salvador. MS-13 has appropriated the number as a gang symbol, but F.E. had seen other Salvadoran kids wear 503 on their clothes and said he took it, as many do, as a sign of national pride.

The guard took him  to the principal. “They started to ask me if I was a gang member,” F.E. said in Spanish, “and I told them I wrote it just because, and they kept telling me that that meant that I was a gang member.”

F.E. said a police officer was called to the meeting and the questioning continued. Again, F.E. denied being in a gang. Several days later, anxious about being wrongly suspected, he said he and a friend also accused of gang ties sought out the school dean. Another meeting  followed with police present.

“We told them we weren’t in any gang and they told us it was fine and to just be careful who we were hanging out with, but in school you speak to many people. And if you don’t talk to those people in gangs, they see you as the enemy.”

That June  F.E., then 16, would be among the first arrested in Operation Matador, a collaboration between U.S. Immigration and Customs Enforcement and local law enforcement agencies launched in response to an eruption of MS-13 violence that had claimed as many as 17 lives on Long Island during the prior year. Most victims, like the gang’s members, were young immigrants, some of whom lacked legal status.

Federal immigration agents,  with intelligence from Suffolk County police and other partners, began arresting Long Island teens with Central American roots, largely unaccompanied minors, and flying them to detention centers thousands of miles away, often leaving their families panicked. ICE issued a news release soon after Matador began that referred to the teens as “confirmed” gang members.

However, jail officials charged with housing the teens objected, saying they were not being shown evidence of gang ties that would justify holding them.

 And when detainees  were later allowed to challenge the evidence of gang involvement  supplied by local police that ICE marshaled against them, judges ordered them released nine out of 10 times, according to Marty Schenker, a San Francisco attorney who helped sue on behalf of the teens. To date, judges have freed more than 30 young people accused of gang ties, most from Long Island.

“The quality of the intelligence was pathetic,” Schenker said. “I can’t emphasize enough how flimsy this evidence was.”

Suffolk District Attorney Tim Sini, who was police commissioner from November 2015 through 2017, rejected the characterization. Echoing ICE officials who said they were unaware of any false identifications, Sini said the department made roughly 100 gang IDs to the agency while he was commissioner and that he stood by each one.

“I’ve yet to see a single case where I doubt the intelligence of the Suffolk County Police Department,” he said.

It would emerge in litigation that evidence Suffolk police gave to ICE included photos, purportedly of F.E., that were actually of another alleged gang member. Paperwork was inconsistent, with police labeling F.E. an MS-13 member and a probable member in the same memo. When a court hearing was finally held and a judge considered the government’s case against F.E., law enforcement officials could not be questioned or argue on their behalf because they did not attend.

Matador, which ICE officials said is establishing a permanent presence on Long Island, has led to full-fledged, dangerous MS-13 members being caught, according to local and federal law enforcement. But critics say that by rounding up nonmembers as well, authorities have fueled the very disaffection that gangs like MS-13 rely on to recruit.

“They are just taking everybody without any regard to the collateral damage,” said Bryan Johnson, an attorney who has represented minors picked up in Matador, including F.E. “It’s scorched earth, it’s just burning everyone up, and what is going to be the result of that?”

*****

F.E. worked at a pizza shop for pocket money and to help support his family. He started his shift in the afternoon and worked until 11 p.m., often seven days a week. He said he would take a break some Fridays and go with a couple of friends to the movies, to eat out or to walk around the Westfield South Shore mall in Bay Shore.

After F.E. drew suspicion at school, Suffolk cops sometimes questioned him, but he was not that worried. “All the young men they saw in the streets they would stop” in Brentwood, he said. “They would drive by and they would stop and ask what my name was and where I lived.”

F.E. said he and a friend were “wrestling” near the friend’s house that June after playing soccer when a police officer noticed them and pulled over.

He said the officer, identified in court records as Matthew Fernandez, “called me and he asked, ‘Are you fighting or playing?’ I said playing … and he said, ‘I am going to arrest you because you are behaving like idiots.’”

Fernandez booked F.E. for disorderly conduct, a noncriminal charge. He was kept handcuffed overnight at a precinct house, according to court filings, then spent several days at the county jail before his family was able to post bail.

The charge was later dismissed, but shortly after his release, F.E. said that Fernandez — who the Suffolk police department declined to make available for an interview — came to his house, grabbed him by the shoulder and put him in his patrol car, saying he had to arrest him again and deliver him to immigration agents.

F.E. was afraid that he would be deported and forever separated from his mother.

“I felt the whole world was falling down on me,” he said.

The coordination between local authorities and ICE that led to F.E.’s arrest and hundreds of others in Matador arose against a backdrop of strained relations between Suffolk police and the Latino community. The department has yet to comply fully with the terms of a settlement agreement reached in 2014 with the Department of Justice aimed at addressing concern over biased policing.

ProPublica, in a story that also appeared in Newsday, has reported that when young Latinos began to disappear in 2016, some of their families said that Suffolk police responded with indifference. Despite families saying they feared their loved ones had been victims of violence, police in several instances treated the missing as runaways. Meanwhile, MS-13 continued to kill young Latinos and dump their bodies in the woods.

Questioned on the police response in 2018, Sini defended the department’s conduct, saying that in several cases foul play was investigated even as the teens continued to be identified as runaways. However, Sini acknowledged that law enforcement intensified its efforts after the bodies of two teenage girls were found in Brentwood in September 2016.

In August 2017, when the ACLU of Northern California filed a class-action lawsuit on behalf of F.E. and other teens swept up in Matador, it alleged that despite Suffolk’s “troubling history” of discriminatory policing of Latinos, “ICE uncritically accepts allegations of gang membership made by SCPD in deciding to issue arrest warrants for unaccompanied minors.”

*****

F.E. was processed at the federal courthouse in Central Islip, then taken to Manhattan and from there to Virginia, starting an ordeal that included time in detention facilities in California and upstate New York.

In Virginia, F.E. said he stared at the walls of his room, not knowing exactly what he had done to deserve being locked up.

“It felt like I was living a nightmare,” he said. “It was this place where you couldn’t see the sun … I was sleeping on a piece of mattress on a concrete bed. It was all white in there, with no windows or anything … Some of the kids who were there looked like they were going crazy, because they had been there a long time.”

Under federal laws meant to protect child migrants and refugees, they can only be confined for long periods if certain criteria are met, such as a finding that a minor is a danger to the community. In August 2017, shortly after Matador began, the Office of Refugee Resettlement, the federal agency responsible for holding unaccompanied minors, outlined recent changes to policy that made evidence of gang involvement a basis for holding young people like F.E. in secure detention.

In a memo to the White House’s Domestic Policy Council, the agency also noted that while the number of minors then in its custody who were gang members was small — approximately 1.6 percent of the 2,400 being held — more could be done to combat the threat.

The federal government has two primary secure detention centers for unaccompanied minors, one in Yolo County, California, the other in Staunton, Virginia, where F.E was first brought. After teens picked up in Matador began arriving, directors of the centers said the evidence to justify their detention was suspect.

“We have received a number of referrals of youth that have been labeled gang-involved individuals with little evidence or self-reported membership,” Kelsey Wong, director of the Virginia center, told the Senate Committee on Homeland Security and Government Affairs in April 2018. “We do a disservice to unaccompanied children when they are mislabeled as gang-involved individuals.”

When the minors began arriving in Yolo County, Brent Cardall, a probation officer in charge of the youth detention facility, told The Sacramento Bee newspaper that he was not being given solid evidence of gang affiliation, as required, to support holding the teens. Lacking evidence, Cardall said his agency attempted its own investigation of the minors’ cases but found “corroboration from local law enforcement in New York to be lacking or insufficient,” according to the article.

Attempts to contact Cardall, who retired in 2018, were not successful.

F.E.’s mother tried for months to get her son released. Those responsible for F.E. at the facilities where he was housed found no indications of gang membership and recommended to higher-ups that he be released, according to a transcript of court testimony in F.E.’s case by Jonathan White, a top Office of Refugee Resettlement official.

Doubts had already begun to surface about the adequacy of the evidence being used to support detention of the minors, and White testified that he “determined that we really did not have enough closer-to-the-ground information, that we really need to know more from the community where he had been living.”

“There are gang members at Brentwood High School, and I am not friends with them, but I can’t be enemies with them either.”

F.E., in a court affidavit

In September 2017, Insp. Michael Romagnoli, who commands the Suffolk police Homeland Security & Criminal Intelligence Bureau, responded to the refugee agency with a memo stating that a “criminal case” was pending against F.E. for disorderly conduct, a noncriminal violation under state law. The memo also states that F.E. “caused a disturbance at Brentwood High School and was transported to principal’s office along with confirmed MS-13 gang member,” and that the “subject was in the company of MS-13 gang members when arrested but denied affiliation.”

F.E. maintains that neither the student who accompanied him to the principal’s office to plead their innocence nor the friend he was wrestling with when arrested belonged to MS-13.

“There are gang members at Brentwood High School,” F.E. said in a court affidavit, “and I am not friends with them, but I can’t be enemies with them either. I have classes with some of them and sometimes, I have to talk to them.”

Perhaps the most damning assertion in Romagnoli’s memo is that while at the Suffolk jail F.E. had, on an unspecified date in June 2017, “admitted to MS-13 association” to an officer with the department’s gang intelligence unit.

Johnson, F.E.’s lawyer, called the accusation “highly suspicious” in court filings and questioned why, given its seeming importance, federal authorities were being told of the alleged admission for the first time three months after F.E.’s arrest.

The memo’s final bullet point sought to clarify that photos Suffolk police had provided to federal authorities earlier were not images of F.E., as had been indicated, but “a different subject detained in Operation Matador.”

The Suffolk police department declined a request to interview Romagnoli. In an email, a department spokeswoman said, “The person referred to as F.E. is a self-admitted MS-13 gang member and has had multiple contacts with police while in the company of other MS-13 gang members.”

Based on the memo and Brentwood High School records that documented academic problems and disruptive behavior, the agency decided not to release F.E. to his mother, who under immigration law was also his sponsor.

“The evidence I reviewed … raises significant concerns about your ability to provide the necessary structure, supervision, and discipline to prevent association with gangs,” then-Office of Refugee Resettlement director Scott Lloyd wrote in a memo to F.E.’s mother. “Inherent to the duties of the sponsor is the responsibility to provide sufficient adult supervision to protect the child from gang recruitment or association with gangs. Taken together the evidence shows that you are unable to provide for [F.E.’s] well-being.”

Lloyd stepped down in November after he was criticized for denying abortions to unaccompanied minors in federal custody and mishandling attempts to reunite immigrant children and their parents separated at the southern border. He became head of the U.S. Department of Health and Human Services office for faith-based initiatives. In late May, the department announced that Lloyd was leaving the agency.

Lloyd did not respond to interview requests.

*****

F.E. was last held in Westchester County at Lincoln Hall Boys’ Haven in Lincolndale. In a case review, staff noted that F.E. showed “good manners and excellent behavior.”

“He reported that what is happening to him is not fair,” the review states, “and continues to deny any gang affiliation.”

F.E. said calls from his mother and visits from her and his stepdad kept him going.

“When I saw them,” he said, “I felt like I was coming back to life.”

Angel Melendez, special agent in charge of the Homeland Security Investigations division in ICE’s New York City regional office, did not directly address questions about F.E. But he said in an interview that no instance of gang allegations against minors arrested in Matador being refuted “had come to my attention.” 

"We do act upon credible information, based on ongoing investigations, and intelligence collection and sharing initiatives," Melendez said. "So the fact that a person is proudly displaying an El Salvadorian flag on the shirt doesn't make them an MS-13. The fact that they are wearing certain colors doesn't make them an MS-13. It has to be ... a number of pieces of information that come together that we analyze."

Melendez, a driving force behind Matador, said that the operation has “proven to be instrumental” in checking MS-13 killings on Long Island.

MS-13 violence on Long Island slowed as Matador began, though separating the effect of mass arrests from other aspects of the law enforcement crackdown is difficult. The cessation in violence also followed the apprehension of gang members who had been implicated in the killing spree.

In March 2017, shortly before Matador launched, federal prosecutors indicted 13 gang members in connection with seven of the 17 MS-13 murders that had taken place in Suffolk over the prior 14 months. The indictment has grown to include additional killings and roughly two dozen MS-13 members.

According to figures that ICE provided, Matador, which targets other gangs in addition to MS-13, had resulted in 842 arrests. Of the total, ICE said that 385 were MS-13 gang members or affiliates and that 135 of those MS-13 arrests involved a criminal charge, while 250 were for civil immigration law violations.

Melendez's office told Newsday that 13 individuals picked up on immigration infractions in Matador were later charged with murder and that five of those 13 had no prior criminal history. ICE credits the operation with helping locate eight bodies of gang victims.

Steven Dudley, a co-director of InSight Crime, a research initiative funded in part by the DOJ, has studied and written about MS-13 on Long Island. He said law enforcement has tried for 40 years to eradicate the gang through such crackdowns, only to see it resurface. And when arrests are being made on questionable grounds, as judges have concluded has sometimes been the case in Matador, it makes an already difficult mission for law enforcement that much harder.

“You are just completely undermining any relationship of trust that may exist between the community that is most impacted by the gangs and authorities,” Dudley said. “I don’t see how you can expect that to further your long-term goals of mitigating the reach and the influence and the impact of the gang.”

Melendez said the community, far from being estranged, has been a Matador ally and provided a flow of tips. “We are not targeting Hispanic males,” he said. “We are targeting individuals that we have information, that we have intelligence, that leads us to believe that they are either members or affiliated to a gang.”

“I’ve yet to see a single case where I doubt the intelligence of the Suffolk County Police Department."

Suffolk County District Attorney Timothy Sini

When, after nearly six months in detention, F.E. was finally able to contest the evidence against him in a Manhattan courtroom on Nov. 21, 2017, ICE did not attend the hearing, and Suffolk police were not represented, leaving an attorney from the Office of Refugee Resettlement in an awkward spot.

“We need the law enforcement personnel here to speak for their actions,” the attorney said by phone, according to a transcript of the hearing. “We are being put into an impossible situation here, having to explain law enforcement actions when we are not law enforcement, we are a custodial agency.”

Asked recently why no police officials had appeared, a Suffolk police spokeswoman wrote in an email that officers only attend “proceedings when requested or subpoenaed.” Asked why none of its officials were present, ICE did not respond. The agency typically declines to comment on individual cases.

The day before F.E. appeared in court, the judge overseeing the ACLU lawsuit had ordered that to “protect against the erroneous deprivation of liberty,” all unaccompanied minors picked up in Matador would be entitled to speedy hearings so that they could respond to the government’s charges of gang involvement.

Schenker, the San Francisco attorney, a partner at Cooley LLP, did pro bono work on the ACLU lawsuit. He said that by his count, 36 hearings — the bulk of which took place in the weeks immediately after the judge’s order — had been held to date and that in 32 of those cases judges freed the teen. However, Schenker said in one of those 32 instances, the teen was not immediately released due to an issue involving a sponsor.

District Attorney Sini said, “If there is a judge that says the evidence is not sufficient, I have to respect that, but that does not mean that they are not MS-13 gang members and it does not mean that they are not dangerous.”

According to a spokeswoman for ICE’s Homeland Security Investigations division, six of the minors whom immigration judges released as a result of the ACLU lawsuit were later arrested on criminal charges. Newsday asked for details on all the cases, but the agency responded only with information on one case, involving Oscar Molina.

An immigration judge released Molina, now 17, on Nov. 28, 2017. He was charged in January with second-degree assault following the stabbing of a 16-year-old Huntington High School student behind a Burger King. Suffolk police identified Molina as an MS-13 member and said he and two other gang members, also Huntington High students, initiated the attack.

Molina’s Legal Aid attorney declined to answer questions. Attorneys for the other two defendants have said the three are not MS-13 members — nor were they aggressors in the incident. Rather, the attorneys have told Newsday, their clients were forced to defend themselves after being attacked by a much larger group.

According to the ICE figures, roughly 26 minors — 80 percent of the total — have had clean criminal records since being freed.

At F.E.’s hearing in November, U.S. Immigration Court Judge Aviva Poczter allowed the Office of Refugee Resettlement attorney to rest his case on the law enforcement records that had been given to the court, rather than make an argument on behalf of ICE or the Suffolk County Police Department.

Johnson, F.E.’s attorney, pointed to an ICE memo that stated the Suffolk police gang unit had identified his client as an MS-13 member. Yet on the following page of the same document, he said, F.E. was identified only as a “probable gang member.” Johnson then referenced Romagnoli’s memo, which states that F.E. “associated” with MS-13.

“They don’t even know whether he has been associating, affiliated or a member,” Johnson told the court. “There is never at any point any definition of what is the difference between member, associated and affiliate?”

The Office of Refugee Resettlement attorney responded: “Yes, it is somewhat internally inconsistent. And that again is all the more reason to call DHS in to testify ... or to call the Suffolk County Police Department in to testify.”

Johnson, again referencing Romagnoli’s memo, pointed out that in attempting to substantiate gang involvement, Suffolk police had “sent false evidence” by providing ICE a photograph of somebody other than F.E.

The Office of Refugee Resettlement attorney said “even taking into account the false evidence and the inconsistent evidence,” there was still enough information, when viewed in its totality, to indicate that F.E. was a danger to the community.

“We reserve the right to resolve doubts against the child,” he said.

Poczter ruled in F.E.’s favor, saying the evidence against him was “insufficient” and based on “many layers of hearsay.” Having written 503 in a notebook, she said, was “slim, slim, evidence” to justify continued detention.

“I am going to let you out of custody today,” Poczter told F.E., “but listen to me carefully: Stay away from problems in Brentwood High School. Do not associate, look at and talk to, to the extent possible, anybody who is a member of a gang. I understand that those people are in your community. Stay away from them to the extent humanly possible.”

*****

F.E.’s arrest not only separated him from his family, it also derailed a petition he’d filed shortly after arriving in the United States to obtain legal residence.

Following his arrest, the government revoked the approval it had given F.E. for one type of legal status granted minors, Johnson said. He has appealed that decision, refiled the petition and is ready for a lengthy legal fight.

Johnson said a final option would be for F.E. to sue the government for “arbitrary and capricious revocation” of his petition and violation of due process rights. “It may require federal action and, unfortunately, for someone like F.E., you can’t sue until you exhaust all administrative remedies … so he’s just waiting in limbo.”

"When large numbers of people are being swept up and we don’t know who they are or what they are being arrested for, that sets a bad precedent."

Dawn Pipek Guidone, a Mineola immigration attorney

The degree to which F.E.’s story reflects a larger pattern is unclear. Save for MS-13 members indicted on federal charges, the identities of those arrested in Matador and information on the disposition of their cases is largely unknown.

The ACLU lawsuit dealt only with unaccompanied minors — a small subset of those arrested — though judges have also freed adults held on allegations of gang ties.

When Newsday asked for case information under the federal public records law, ICE said it was necessary to get signed consent from the individuals it had picked up in Matador before details could be released — a practical impossibility given that the identities and whereabouts of these people has been withheld.

“When large numbers of people are being swept up and we don’t know who they are or what they are being arrested for, that sets a bad precedent,” said Dawn Pipek Guidone, a Mineola immigration attorney who represented a Huntington High School student picked up in Matador and later released by a judge.

*****

F.E. is now a sophomore at another high school in Suffolk and said he has been getting his life on a solid course. One effect of his experience has been that he’s taking his education more seriously, he said, determined to build a future.

He said his grades are high, that he enjoys algebra and that he hopes to become an electrician. He thinks about going to college someday and perhaps becoming an engineer.

F.E. admits to “acting stupid” and not being focused on school before his arrest and detention, but he said being a bad student did not make him a gang member.

“The whole thing was unjust,” he said, “because I have never been in any gang.”

At the federal courthouse in Central Islip, Operation Matador is expanding. ICE is moving into a larger space to accommodate an increased number of law enforcement partners and a computer forensics lab. An ICE spokeswoman said the expansion should be complete this summer.

“We are not taking the foot off the pedal,” said Melendez, the special agent in charge at ICE’s NYC regional office. “We will continue our efforts to disrupt and dismantle MS-13, and there is more to come.”

With Sandra Peddie and Nicole Fuller

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