Immigration Law and Criminal Gangs: Congress and the White House Weigh In

Congress and the White House have both weighed in on the role of criminal gangs in the immigration debate, a signal that the issue will not be going away anytime soon. While not granting citizenship or sanctuary to immigrants in criminal gangs sounds like a sensible notion, it is a complicated issue that would require significant changes to codified immigration law. Current immigration law does not have specific prohibitions on those who are members of gangs from entering or remaining in the United States. However, any immigrant who commits certain crimes, including those related to gang activity, can be deported or barred from entry. Additionally, individuals whom the government has reasonable ground to believe are entering the United States to engage in an unlawful activity, such as criminal gang activity, can be prevented from entering.

Congress and the White House have both weighed in on the role of criminal gangs in the immigration debate, a signal that the issue will not be going away anytime soon. 

The House recently passed a bill introduced by Rep. Barbara Comstock (R-VA) called the Criminal Alien Gang Member Removal Act (H.R. 3697). The bill adds provisions on criminal gang membership to the existing Immigration and Nationality Act (INA) inadmissibility and deportation sections. Elements of this legislation can also be found in a bill introduced on the Senate side by Sen. Jeff Flake (R-AZ), the Border Security and Deferred Action Recipient Relief Act (S. 1937).

The bill adds a definition of “criminal gangs” to the definitions section of the existing law, defining a gang as an, “ongoing group… of five or more persons that has as one of its primary purposes the commission of one or more criminal offenses.” These offenses include felony drug offenses, harboring certain aliens, crimes of violence, and witness tampering.

Additionally, the bill adds criminal gang membership to the inadmissibility and deportability sections of the INA. It also clarifies how a criminal gang can be designated by the Department of Homeland Security, requires mandatory detention of immigrant criminal gang members, and calls for an annual report from DHS on the number of immigrants detained under the gang designation provisions.

Finally, the bill prohibits any immigrant found to be a member of a gang from qualifying for asylum, temporary protected status (TPS), special immigrant juvenile visas, or other forms of relief from removal.

While the bill passed the House with some bipartisan support, immigration advocates such as the ACLU and National Immigrant Justice Center argue that the definition of “criminal gang” in the text of the bill is too broad in scope and that law enforcement can too easily label someone as a gang member based strictly on hearsay, with little evidence or recourse. Moreover, they believe the new definition of criminal gang could potentially label groups – such as pro-immigrant churches who shelter undocumented immigrants – as gangs, because it includes under the criminal offenses “harboring certain aliens,” and any group, club, or association with five or more people.

Advocates are also troubled by the bill’s preclusions from asylum, especially since the 2014 and 2016 surge of Central American children and families was largely attributed to an increase in gang violence in their countries of origin. If those apprehended crossing the border were found to have previous gang ties, they would not be eligible to claim asylum.

Advocates for strengthening criminal gang provisions cite the rise of these gangs in the United States and the crimes committed by gang members as evidence of the need to specifically target immigrants who are affiliated with these criminal organizations. They argue that the lack of formal grounds in the current immigration law allow individuals who are gang members to remain in the United States.

After the Trump Administration’s decision to eliminate the Deferred Action for Childhood Arrivals (DACA) program, there have been signs that the issue of gangs could be linked to eventual legislation to provide a permanent solution for DREAMers. Comstock’s bill passed the House shortly after the Trump Administration’s decision was announced, so its text did not address issues related to DREAMers. However, Sen. Jeff Flake’s (R-AZ) bill to address DACA did include these criminal gang stipulations in its protections for DREAMers.

The inclusion of this language on gangs in a proposal designed to provide a permanent legislative fix for DREAMers touches on many legal rights issues for immigrants. Adding in the criminal gang issue and other enforcement changes to the INA as part of DREAM legislation may raise red flags for many who see the provisions as a way to circumvent due process for immigrants.

BPC’s recently released issue brief, “A Roadmap for a DACA Deal” suggests that a legislative deal on DACA will require compromise and a narrow focus—border security for permanent status for DREAMers. Given the intense debate over this issue, clearly, there is not yet bipartisan consensus on how to best address the scourge of criminal gangs in the context of immigration policy. But because of the looming deadline for the expiration of current DACA beneficiaries, getting to consensus on the issue quickly would be necessary if it is to be part of any legislation this year.