Discriminatory gang provisions enforce guilt by association

BACKGROUND: Gang databases are the tool law enforcement generally uses to assess gang membership and activity. Gang databases label individuals as gang members because the individual resides or associates with a family member known to be in a gang or lives in a neighborhood where there is a high concentration of gangs and gang members.

These databases mounting criticism for their use of inconsistent definitions, improper documentation procedures and inadequate review. The databases store photos and personal information of individuals who are suspected of gang activity but may actually have no involvement whatsoever with a gang.  You may have heard of these databases as CalGang or GangNet.

THE PROBLEM: The bill’s current provisions create a new ground of deportability for suspected gang members that will depend on flawed gang databases to determine gang membership. By relying on these databases, these proposals impose guilt by association and collective punishment by targeting people not for their own individual culpable conduct, but for their association with groups considered to be dangerous.  The Senate bill creates new deportation grounds and legalization ineligibility grounds. These proposals make it very difficult to challenge and correct such mistakes of misidentification; permitting deportation based on information contained in these gang databases would invariably result in increased deportations of people who may have never even had contact with a gang or have long since left a gang and rebuilt their lives.

THE SOLUTION: Most states and the federal government already have laws that punish or enhance sentences for individuals suspected of being gang members, recruiting gang members, or committing crimes while in a gang.  In addition, immigration laws already provide the government with the ability to deport individuals engaged in criminal activity.  The Department of Homeland Security already uses its full discretionary power and prioritizes the use of its resources to target suspected gang members for deportation. 

RELEVANT AMENDMENTS

Sen. Grassley’s Amendment #43/Floor #1299 was considered by the Senate Judiciary Committee during the bill’s markup and would replace and worsen the already egregious gang provisions in the Senate bill. Update: 6/18/2013 The amendment was narrowly defeated in Committee, and has been filed for the floor. 

Amendment #43/#1299 would:

  1.  Make it easier to be labeled a gang member by creating a new broad definition of criminal street gang that could sweep in political groups;
  2. Substantially increase and shift the burden of proof on the person charged with the new provisions (“prove he did not know or reasonably should have known about the gang”);
  3. Increase the likelihood that a person would be permanently blocked from legal status and/or deported if they fall within the ambit of this new ground;
  4. Create new grounds of deportation that are primarily based on conduct, not convictions; and
  5. Sweep in more minors, including those who are lawful permanent residents. Grassley’s amendment only exempts minors who are applying for legalization.

SUPPORTING OPINIONS

Santa Cruz County Chief Probation Officer Scott McDonald has expressed serious concerns that these proposals will directly undermine his County’s success in juvenile justice reform, which is a model now being replicated in 100 jurisdictions in 30 states and the District of Columbia. In a letter to the Senate Judiciary Committee he said,

[U]sing evidence based practices, our local reform efforts have resulted in cost savings in the millions, reduction of the juvenile hall population by more than half, and reduction of juvenile felony arrests by 48 percent and misdemeanor arrests by 43 percent, said Mr. McDonald.

He also stated that these provisions would lead to increased misidentification of youth as gang members: [I]t is common for local police to take action against youth, especially in one area that is reputed to have gang members, if there is a belief that such youth are involved with gangs. Instead, we find that many youth are not gang members, but at-risk youth.

The LA Times editorial board editorialized against the discriminatory gang provisions:

[B]ut some lawmakers…are backing a provision that goes too far, excluding immigrants who have no criminal history simply because their names appear in a database of gang members or on a gang injunction. – L.A. Times editorial board, May 14, 2013

STORIES

Youth of color will be unfairly and disproportionately affected because many live in inner-city neighborhoods or low-income communities that are more likely to have a high concentration of gangs.

Ronny*, a 35-year old green card holder, was brought to the United States at the age of two. Ronny’s parents are U.S. citizens and he is engaged to a U.S. citizen. In 2003, Ronny was arrested for a marijuana sale in Illinois. He pled guilty and was sentenced to 18 days in jail and two years of probation, which he successfully completed. This was Ronny’s last criminal offense.

In July of 2012, immigration officers, in a joint operation with local authorities in DuPage County, Illinois, arrived at Ronny’s home to arrest him and put him in deportation proceedings. Ronny discovered he was on a gang list, compiled by DuPage law enforcement. Ronny has never been in a gang, nor has he ever engaged in any gang-related activities, but he did grow up in a neighborhood where gang activity was prevalent and had friends who were associated with gangs.

Under this provision, Ronny could be considered a gang member and sentenced to permanent separation from his family.

*Name changed to protect identity.

TALKING POINTS

  • The current immigration bill creates provisions that will exacerbate existing problems of misidentification of gang members, including individuals who are no longer members and have long been rehabilitated, or have never even been in a gang.  These provisions disproportionately target youth of color and would disqualify these individuals from legalization, or RPI status, and deport those who already have legal status.
  • The bill’s provisions impose guilt by association and collective punishment by targeting people not for their own individual culpable conduct, but for their associations with groups considered to be dangerous.  For example, this provision could impact a person who resides with or associates with a family member known to be in a gang or lives in a neighborhood where there is a high concentration of gangs.
  • Attempts to broaden the definition of “gang” for immigration purposes will have very serious consequences, including dramatically increasing unwarranted targeting of children and youth of color.   At-risk youth run a greater risk of being wrongfully misidentified and prosecuted.
  • These proposals make it very difficult to challenge and correct mistakes of misidentification. Gang databases face mounting criticism for their use of inconsistent definitions, improper documentation procedures and inadequate review. A person can be in a gang database without ever knowing about it, and most gang databases do not have accessible mechanisms for individuals to be removed from the database.
  • These proposals diminish public safety in communities that experience gang violence. Individuals will be less likely to report crimes and gang violence in their communities because they will fear that any interaction with law enforcement will lead to deportation.

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Download PDF of Gang Provisions Talking Points or  IJN’s Criminal Bars to Legalization Packet