June 27, 2005

New Bill Needs Some Help To Expel Alien Gang Members—We Provide It

By Juan Mann

Good news: there’s a bill in Congress to detain and deport aliens based on their membership in known dangerous street gangs.

Bad news: Congress expects the federal immigration litigation bureaucracy of the Department of Justice’s notorious Executive Office for Immigration Review (EOIR) and federal appeals courts actually to enforce the bill.

"The Alien Gang Removal Act of 2005," H.R. 2933—introduced in the House of Representatives on June 16 by J. Randy Forbes (R-VA)—currently has thirteen cosponsors. [PDF] The bill would seek to deport known alien gang-bangers and drug cartel foot-soldiers who are otherwise in the U.S. legally, with a green card or non-immigrant visa—even if they have not been convicted of a specific removable crime under current immigration law.

Hearings on H.R. 2933 will be held before the House Judiciary Committee’s Immigration, Border Security and Claims subcommittee on Tuesday at 3 p.m. at the Rayburn House Office Building, room 2141.

H.R. 2933 amends the Immigration Act to create new grounds of inadmissibility—Section 212(a)(2)(J)(i)—and new grounds of removability—Section 237(a)2)(F)(i)—for aliens who are members of any informal criminal street gang, who are also convicted of a "gang crime," or who are members of known criminal organization officially designated by the Secretary of Homeland Security as a criminal gang.

Additionally, illegal alien gang members, already removable as being present in the U.S. without inspection or as visa-overstayers, could also be charged under the new H.R. 2933 provisions in order to limit their eligibility for relief from removal in Immigration Court.

H.R. 2933 could be an effective weapon against violent street gangs, hit-men and support staff for Mexican-based drug cartels—such as the notorious "Zetas" (renegade Mexican paramilitary officers now operating in the U.S.).

Proving criminal charges against elusive kingpins and shadowy hit-men from the drug underworld is daunting. But the new grounds of removability and inadmissibility could be used to root out criminal alien gang members who might not otherwise be removable. H.R. 2933 includes these aliens under the mandatory detention provisions of Immigration Act Section 236(c), so this strategy will help stem the tide of frivolous immigration litigation in these cases (although it will not dry it up completely).

Nevertheless, there is a problem with H.R. 2933: it still operates within the litigation-based framework of the EOIR Immigration Court system.

This means the new H.R. 2933 charges could be immediately shelved as unprovable by EOIR immigration judges all over the country.

Practically speaking, the new charges could easily fall into disuse, due to the inherent difficulty in proving "gang membership" for any particular alien under the "clear and convincing evidence" standard of Immigration Act Section 240(c)(3).

A VDARE.com reader identifies the main problem with the bill recently via e-mail:

"Most of the [Immigration and Customs Enforcement (ICE) Special Agents] know their stuff regarding all of the local gangs, their territories, the tattoos and the gang signs. And they work with local law enforcement too. [But] what little gang-banger is going to admit to his membership in Immigration Court?”

My reader gave an example:

"…an adjustment of status case in for an ‘ex-gang-banger,’ or so he claimed. When he was on the witness stand, the immigration judge could see a little tattoo on his face, a teardrop. I’ve been told that this represents that he has killed someone. [But when] the immigration judge questioned him about his gang affiliation, of course, he claimed that he had quit the gang and planned to have his tattoos removed.

"The adjustment of status was granted, of course, because adjustment is NEVER denied in Immigration Court!"

Exactly! The EOIR immigration judges are the issue. That's the elephant in the middle of the room here with H.R. 2933.

The better alternative in dealing with dangerous gang and drug cartel members would be to keep these cases away from the EOIR—to make sure that these aliens get deported and stay deported.

The same categories of gang-bangers and known criminals identified in H.R. 2933 could be summarily removed under a framework that already exists in Immigration Act Section 235(c)(1) and Section 235(c)(2)(B)(i).

These sections of the immigration law deal with aliens who are security threats, terrorist threats and "foreign policy" threats.

So as a public service for immigration law enforcement, I’ve analyzed H.R. 2933 [PDF]  as currently constituted. I also suggest some amendments in order to slam the door on loopholes already built into the Immigration Act that would allow these classes of aliens to stay in the U.S. anyhow (regardless of the new H.R. 2933 grounds of removability).

Immigration law junkies can read all of the details here.

Another important issue raised by H.R. 2933: whether local police departments across the country will actually use even existing immigration laws to clean up their alien gang problems.  

If known criminal alien gang members aren’t being arrested or turned over to the DHS already, then whether the aliens are charged under existing removal grounds or newfangled gang member grounds won’t matter one bit.

So with or without H.R. 2933, why not start the ball rolling by detaining and charging the convicted criminal alien residents and the illegal alien gang-bangers we already know about under existing authority—namely Section 133 of the Immigration Act.

What have we got to lose…except a few hundred thousand criminal aliens?