El Salvador to create a Deportee Criminal Registry


Since Donald Trump took office as the President of the United States, the government of El Salvador has prepared for the impact that mass deportations will have on the country. An accelerated increase in deportations, which had already reached record highs during the Obama administration, would likely cause severe instability in the small Central American country where jobs and educational opportunities remain scarce and social services are limited, and where violence continues to drive migration and community instability.

For several years now, El Salvador’s government has invested and sought cooperation to increase its capacity to repatriate migrants deported from the United States and Mexico and reintegrate them into Salvadoran society, creating attention centers and initiating programs to create job and educational opportunities for them. But Trump’s emphasis on deporting people with criminal records, particularly those with gang affiliations and his specific obsession with Central American gangs like MS-13 has become a cause of widespread concern in the country, where the FMLN administration has spent the last number of years cracking down on organized criminal structures and gang members and has achieved a significant reduction in murders, extortions and other crimes in what goes of the year.

These concerns were made more real by an increase in the number of persons deported to El Salvador with gang related criminal records in the first 6 months of the year; according to the Department of Migration (DGME) from January to June of this year El Salvador has received 15,000 deportees (mainly from the US and Mexico), and among those 556 were gang members; this is compared to a total of 514 gang members in the entire year of 2016.

Following meetings with US Attorney General Jeffrey Sessions during his July visit to El Salvador, the country’s independent Attorney General Douglas Melendez held a press conference in which he asserted that investigations have found that gang members deported from the US to El Salvador were re-founding gang structures and giving them names of US cities and neighborhoods. He announced that in a meeting with Sessions and the Attorneys General of Guatemala and Honduras they had agreed to carry out joint investigations to confront this problem. Melendez went on to say, “In the case of El Salvador, a clear strategy should already exist of how this phenomenon of receiving more people will be addressed, but that is a responsibility of the [executive] government.”

To immediately address this issue, the Legislative Assembly’s Committee on Security and Justice began discussing legislative responses with the president’s security cabinet. An early proposal from Guillermo Gallegos, a legislator for the right-wing GANA party and president of the Legislative Assembly, called for deportees identified as gang members to be immediately captured and imprisoned. Gallegos told El Salvdor’s Channel 12 News, “The United States has every right to deport every criminal, especially gang members, and we have the right and the obligation as a country to, once they have stepped one foot of the airplane, capture them.” He justified his proposal with a reference to a previous decision by the Constitutional Chamber of El Salvador’s Supreme Court that declared all gang members terrorists.

The executive countered this proposal, which would violate El Salvador’s Constitution, with a proposal that deported gang members be put in a national registry and required to submit to a parole-like regimen. Ultimately, the executive’s proposal was adopted and on June 29 the Legislative Assembly passed Decree 717 to create a Registry of Returned Gang Members and implement special measures of control for these individuals.

If deportees, through their regular interview with the National Civil Police upon their return to El Salvador, are found to have a connection to a gang they may be required to check in and sign a registry at their local police station every thirty days and inform the police of change of address or if they plan to leave the country. Specifically the police may require these special measures of deportees for the follow 5 reasons; 1) if they have a criminal history linking them to gangs or criminal groups, 2) if they have associated with individuals known by the police to be members or collaborators of gangs or criminal groups, 3) if they have frequented places known to be meeting sites of gang members or criminal groups, 4) if they, through written, spoken or digital means, promoted the ideals of, or showed that they belong to a gang or criminal group, and 5) if they carried out acts of intimidation in public spaces. The police will then attempt to verify the information using local and foreign criminal records, examination of tattoos, and data from the Transnational Anti-Gang Center.

The police will also refer anyone with gang connections to the Attorney General's office who can bring cases before a judge. During these proceedings the person accused of being connected to a gang has a right to an attorney. If the judge determines that there are gang connections then they may impose additional measures, including prohibiting the individual from abusing drugs, consuming alcohol, carrying weapons, frequenting certain places or associating with certain people.  Judges may also require those found to have connections with a gang to participate in rehabilitation programs, hold down a job or enroll in an educational or trade program, reside in certain areas, or complete community service.

The Salvadoran government´s response has been influenced by the experiences of 1994 and 2006, when the Clinton and Bush administrations carried out mass deportations of undocumented immigrants with criminal records, many of whom were the children of Salvadoran refugees who had come to the US during the Civil War of the 1980s. A large number of these youth had organized themselves into street gangs in US cities such as Los Angeles as a way to defend themselves against other street gangs and the police, and then re-organized those gangs in El Salvador when they were repatriated. The wave of deportations of this period is widely acknowledged to be one of the driving factors behind gang violence in El Salvador today.

At a community event in Los Angeles, FMLN legislator Roger Blandino Nerio, a member of the Committee on Security and Justice, explained “This isn’t about imprisoning them [deportees with criminal records] if they have not committed crimes in El Salvador, but to have them under control so the phenomena of 1994 and 2006 are not repeated, when many returned gang members arrived and no one put them under control and it served to shoot off the growth of the gangs in places where they had never existed before.”

While the approval of the law was largely uncontroversial in El Salvador, Salvadorans in the US have raised major concerns about the law from a human rights perspective. Deportees in El Salvador are already an incredibly marginalized and discriminated community, and there are concerns that laws like this will further stereotype and criminalize migrants, creating a “deportee to prison pipeline.” Furthermore, those who work with marginalized youth in the US have long noted that notoriously racist and anti-immigrant US authorities frequently apply the label “gang member” without cause. A bill recently approved in the US House of Representatives known as the Criminal Alien Removal Act would make it even easier to expedite deportations of individuals labeled gang members, a measure critics say will only further criminalize Latinx youth.

As the Trump administration and Congress’ assault on immigrant communities ramps up, countries like El Salvador are preparing for the promised mass deportations. According to Blandino, other measures the government is also implementing include an initiative with Costa Rica, Nicaragua, Honduras, Belize, and other countries to pass Child Migrant Protection Laws; the creation of a fund that will be financed by fees paid to Salvadoran consulate to both provide legal advice and representation to Salvadorans facing deportation from the US or Mexico and provide “direct support to people that were already victims of forced return and the rupture of their family;” and a coordinated effort by the country’s Legislative Assembly and Ministry of Foreign Relations to lobby and advocate for the rights of Salvadoran migrants in the US Congress and with Trump administration officials.

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