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Thursday, October 12, 2017

What is a Criminal Gang?

Written by  Linda A. Dominguez

A draconian Senate bill aims at overreach to attack immigrants and allies

While everyone has been watching the series of tweets since January 20th, Congress has been working quietly to change certain language with the hope of a presidential signature to make them new law. So far, there is no new law in place but the bills being proposed are scary to think about.

One of them is Senate Bill 52, “To make aliens associated with a criminal gang inadmissible, deportable, and ineligible for various forms of relief.” A glance at the title would cause someone to say, “Sure! We do not want criminal gang members in the US!” However, the definition of a criminal gang is a bit of a problem. Senate Bill 52 would change 8 U.S.C. §1101(a) to include the following language:

(53) (A) The term “criminal gang” means an ongoing group, club, organization, or association of five or more persons

(i) (I) that has as one of its primary purposes the commission of one or more of the criminal offenses described in subparagraph (B); and

(II) the members of which engage, or have engaged within the past five years, in a continuing series of offenses described in subparagraph (B); or

(ii) that has been designated as a criminal gang under section 220 by the Secretary of Homeland Security, in consultation with the Attorney General, or by the Secretary of State.

(B) The offenses described in this subparagraph, whether in violation of Federal or State law or foreign law and regardless of whether the offenses occurred before, on, or after the date of the enactment of this paragraph, are the following:

(i) A ‘felony drug offense’ (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).

(ii) An offense under section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the US), or section 278 (relating to importation of alien for immoral purpose).

(iii) A crime of violence (as defined in section 16 of title 18, US Code).

(iv) A crime involving obstruction of justice, tampering with, or retaliating against a witness, victim, or informant, or burglary.

(v) Any conduct punishable under section 1028 or 1029 of title 18, US Code (relating to fraud and related activity in connection with identification documents or access devices), sections 1581 through 1594 of such title (relating to peonage, slavery and trafficking in persons), section 1952 of such title (relating to interstate and foreign travel or transportation in aid of racketeering enterprises), section 1956 of such title (relating to the laundering of monetary instruments), section 1957 of such title (relating to engaging in monetary transactions in property derived from specified unlawful activity), or sections 2312 through 2315 of such title (relating to interstate transportation of stolen motor vehicles or stolen property).

(vi) A conspiracy to commit an offense described in clauses (i) through (v).

(C) Notwithstanding any other provision of law (including any effective date), the term ‘criminal gang’ applies regardless of whether the conduct occurred before, on, or after the date of the enactment of this paragraph.

(Emphasis supplied by author).

The first problem is the definition of what is a criminal gang. What is to stop the federal government from finding that a church or even a law firm is a criminal gang if there are five or more persons in the group? Many churches give assistance to people in the immigrant community whether or not they are legally in the US. Law firms give legal advice to clients that need assistance. Some of those people could be gang members or former gang members or somehow associated with gang members (like family members). Will there be repercussions for those members of the church or law firm who are not US citizens? How much must such a member do to qualify as a person who assists in the “harboring” or conspiracy to assist someone deemed to be a criminal gang member?

Senate Bill 52 states that no one whom the Attorney General or Secretary of the Department of Homeland Security “has a reason to believe” meets the definition of a criminal gang member will be eligible, as a matter of law, for asylum, temporary protected status (“TPS”), or special juvenile immigrant status (“SJIS”). Does this mean that the person asking for such relief must have a criminal conviction for actions which are included in the definition of a “criminal gang” or is just a suspicion that they are involved in such actions enough? What does “reason to believe” mean under the law? The Court of Appeals for the Fifth Circuit has talked about what the phrase “reason to believe” means in Cuevas v. Holder. In that 2013 case, the court said: “We have no difficulty... in joining other circuits that have held that a conviction is not required to meet this standard.” However, the Fifth Circuit did find that there must be evidence underlying the “reason to believe”: “The First Circuit [has] ... intimated that this standard is equivalent to the probable cause standard. … Conversely, the Ninth Circuit requires a showing greater than mere probable cause. ... (holding that a reason to believe must be based on reasonable, substantial, and probative evidence).”

The “probable cause” standard is usually defined a reasonable ground for supposing that a criminal charge is well-founded and often applies to requests for search warrants. In other words, would a reasonable person believe that a crime has been or is being committed and the law enforcement officer should be granted a search warrant to gather more evidence?

As you can see, the language that Congress wants to use looks dangerous if applied to people that only want to help persons in the US with medical or housing issues or possibly even representing them before a court of law. We must look closely at what is happening quietly in the corners of Congress while headlines are blaring out the latest twitter storm.

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