Bill Would Move to Control Gang Violence

By Andrew R. Arthur and Jessica M. Vaughan on September 11, 2017

Transnational gangs are a unique and growing public safety threat in America, not only due to their members' propensity for violence and their focus on recruiting schoolchildren, but also because of their relationship with gang leaders based outside of the United States.

State and national gang threat assessments have documented an increase in transnational gang activity in recent years, particularly of those gangs associated with aliens from Central America, including MS-13 and 18th Street. This increase has been fueled by the years-long surge in illegal arrivals of unaccompanied minors. Some gangs boosted their ranks by bringing in recruits from abroad who could take advantage of lenient policies at the border. In addition, established gang cliques in areas where many unaccompanied minors were settled targeted the new arrivals for recruitment, sometimes recruiting children as young as 10 years old.

The Center has identified 126 U.S. communities in 24 states (72 percent in suburban locations) that in the last two years have experienced a violent crime wave attributed to MS-13 and 18th Street. These two gangs are the most notorious Central American gangs, and have a large share of members who are illegal aliens. The hot spots include the Washington, D.C., suburbs, Long Island, N.Y., greater Boston, and Houston.

Among the crimes attributed to MS-13 were dozens of homicides, numerous attempted murders, arson, extortion, drug trafficking, firearms violations, rape, robbery, and witness tampering. Seventy percent of MS-13's homicide victims we tracked were under the age of 21.

Hundreds of gang members were able to obtain work permits and avoid deportation under the Deferred Action for Childhood Arrivals (DACA) program due to lax screening and eligibility criteria that explicitly excused certain criminal convictions. The most notorious example was Emmanuel Jesus Rangel-Hernandez, who murdered three people in Charlotte, N.C., in February 2015. Rangel-Hernandez was approved for DACA in 2013 even though he was in removal proceedings stemming from a prior arrest on drug possession charges, and even though his gang ties were noted in his record. In response to congressional scrutiny brought on by the Rangel-Hernandez case, USCIS did a special case review and found 282 additional cases of gang members and other criminals who had been approved for DACA. USCIS terminated DACA benefits for many of these individuals, but according to the agency statements, apparently more than half were able to stay in the country even after losing their DACA status.

An MS-13 gang leader in Frederick, Md., received DACA benefits and was hired as a custodian at a local middle school. He is now incarcerated for various gang-related crimes. According to law enforcement sources, he was told by gang leaders in El Salvador to take advantage of the lenient policies at the U.S. border to bring in new recruits, knowing that they would be allowed to resettle in the area with few questions asked. Several of these unaccompanied minors now have been arrested and incarcerated for various crimes, including a vicious random attack on a sheriff's deputy in 2015.

Alien gang members in the United States illegally are especially vulnerable to law enforcement. Immigration authorities have been very effective in addressing this phenomenon in the past, taking tens of thousands of gang members off the streets and out of American communities over the past 10 years. But today, the transnational gangs are not only more violent than we have seen in the past, they are more sophisticated and more organized. For this reason, federal immigration agencies need updated tools in order to be successful in suppressing this phenomenon.

Fortunately, on September 7, 2017, Rep. Barbara Comstock (R-Va.) introduced H.R. 3697, the "Criminal Alien Gang Member Removal Act", with the support of powerful House Judiciary Chairman Bob Goodlatte. If passed, this crucial piece of legislation will provide the Department of Homeland Security (DHS) with additional weapons to address the growing issue of alien gang violence.

Section 2 of that bill would add a new paragraph 53 to section 101(a) of the Immigration and Nationality Act (INA), to define the term "criminal gang." Specifically, it defines a "criminal gang" as:

[A]n ongoing group, club, organization, or association of 5 or more persons that has as one of its primary purposes the commission of 1 or more of [a specified set of] criminal offenses and the members of which engage, or have engaged within the past 5 years, in a continuing series of such offenses, or that has been designated as a criminal gang by the Secretary of Homeland Security, in consultation with the Attorney General, as meeting these criteria.

Included in those criminal offenses are: a "felony drug offense" (as defined in 21 U.S.C. § 802); bringing in and harboring aliens under section 274 of the INA; aiding or assisting aliens to enter the United States under section 277 of the INA; importation of an alien for an immoral purpose under section 278 of the INA; a crime of violence (as defined in 18 U.S.C. § 16); burglary, obstruction of justice, and witness tampering or retaliation; fraud in connection with identification documents or access devices under 18 U.S.C. §§ 1028 and 1029; offenses related to peonage, slavery, and trafficking in persons under 18 U.S.C. §§ 1581 through 1594; interference with commerce by threats or violence under 18 U.S.C. § 1951; money laundering under 18 U.S.C. § 1956; interstate transportation of stolen motor vehicles or stolen property under 18 U.S.C. §§ 2312 through 2315; as well as conspiracies to commit these offenses.

Aliens whom a consular officer, the secretary of Homeland Security, or the attorney general knows or has reason to believe have been members of or to have participated in the activities of criminal gangs (as defined in the proposed section 101(a)(53) of the INA) would be rendered inadmissible under a new section 212(a)(2)(J) of the INA. To be inadmissible under the latter provision, the alien had to have known or had reason to believe that that such activities would "promote, further, aid, or support the illegal activity of the criminal gang."

Such aliens would also be deportable under a new section 237(a)(2)(G) of the INA.

Aliens who are inadmissible under these provisions are subject to mandatory detention, and aliens described in these provisions are barred from receiving asylum, temporary protected status, and special immigrant juvenile visas.

Much of the bill text relates to the criminal gang designation process, which would be done by the DHS secretary in consultation with the attorney general, as delineated in a new section 220 of the INA. That process would provide for notification of Congress in advance of a designation, and would require publication in the Federal Register. Designations would remain effective until revoked.

The bill allows a designated group to seek judicial review of that designation within 30 days of publication of the designation in the Federal Register in the federal circuit court for the District of Columbia.

The bill allows the designated group to challenge that designation by petition to the DHS secretary during a two-year period after the designation occurs, via a procedure that would require the designated group to provide evidence that it is not a "criminal gang" as defined in the proposed section 101(a)(53) of the INA. The secretary would have to make a decision on revocation within 180 days after receiving such petition.

If no such review occurs within five years of designation, the secretary must review the designation on her own, conducted pursuant to procedures that she designates, to determine whether the designation should be revoked. Neither the procedures nor the review results are subject to judicial review. Congress may, however, revoke or block a designation.

Importantly, the bill allows the Secretary to amend a designation if she:

[F]inds that the group, club, organization, or association of 5 or more persons has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name or names, or merged with another group, club, organization, or association of 5 or more persons.

These procedures largely mirror the procedures for the designation and review of foreign terrorist organizations in section 219 of the INA.

The primary objection that is likely to be made with respect to this legislation relates to the grounds of inadmissibility provision. Section 240(c)(2) of the INA provides that in removal proceedings, an alien who is an applicant for admission, that is, who has not been admitted to the United States, bears the burden of establishing that he or she "is not inadmissible under section 212." Thus, critics may argue, U.S. Immigration and Customs Enforcement (ICE) could charge any alien with inadmissibility under new section 212(a)(2)(J) of the INA, and force the alien to prove that he or she is not a member of a criminal gang.

As a practical matter, however, the simple denial by the alien of membership or participation in a criminal gang would be sufficient evidence to shift the burden to ICE to adduce evidence to show that the alien was inadmissible on this ground.

It remains to be seen whether this bill will receive committee or House consideration.

Topics: Gangs