<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:22187.wais]
ALIEN GANG REMOVAL ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 2933
__________
JUNE 28, 2005
__________
Serial No. 109-52
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
22-187 WASHINGTON : 2005
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California
George Fishman, Chief Counsel
Art Arthur, Counsel
Luke Bellocchi, Full Committee Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
----------
JUNE 28, 2005
OPENING STATEMENT
Page
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, acting Chair, Subcommittee on Immigration,
Border Security, and Claims.................................... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
The Honorable Darrell Issa, a Representative in Congress from the
State of California............................................ 3
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 4
WITNESSES
The Honorable J. Randy Forbes, a Representative in Congress from
the State of Virginia
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Kris W. Kobach, Professor of Law, University of Missouri-
Kansas City
Oral Testimony................................................. 9
Prepared Statement............................................. 11
Mr. Michael M. Hethmon, Staff Counsel, Federation for American
Immigration Reform
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Mr. David Cole, Professor, Georgetown University Law School
Oral Testimony................................................. 28
Prepared Statement............................................. 30
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 59
Revised Prepared Statement of David Cole, Professor, Georgetown
University Law School.......................................... 61
ALIEN GANG REMOVAL ACT OF 2005
----------
TUESDAY, JUNE 28, 2005
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3:02 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Louis
Gohmert (acting Chair of the Subcommittee) presiding.
Mr. Gohmert. It's a few minutes after 3 o'clock, so we'll
go ahead and get started.
Today, the Subcommittee on Immigration, Border Security,
and Claims will examine H.R. 2933, the ``Alien Gang Removal
Act.'' We have witnesses here ready to testify.
At this point I do have an opening statement, but in the
interest of time, we have four witnesses, I may just go ahead
and submit that in writing if there's no objection. So with
unanimous consent of the Committee, that will be done.
I would like to introduce the witnesses. The first witness,
the Honorable Randy Forbes. Congressman Randy Forbes is
currently serving his third term representing the Fourth
District of Virginia. He is a Member of the House Armed
Services Committee, Science Committee and the House Judiciary
Committee. It seemed like I had seen you here before. He has
focused his efforts in Congress on protecting the security and
sovereignty of our Nation. From 1989 to 1997, he served the
Commonwealth of Virginia in the General Assembly, first as a
member of the House of Delegates and then as a State Senator
from 1997 to 2001. Congressman Forbes was valedictorian of his
1974 class at Randolph Macon College, and holds a J.D. degree
from the University of Virginia Law School.
Also we have Professor Kris Kobach. Is that c-h like a
``k?'' All right, thank you. Kris Kobach. He is a Professor of
Law at the University of Missouri at Kansas City School of Law,
where he teaches constitutional law, American legal history,
legislation and legislative drafting. From 1995 to 1996, Mr.
Kobach was a judicial clerk for Judge Deanell Tacha of the 10th
Circuit U.S. Court of Appeals. In 2001 he came to Washington to
become a White House Fellow. After his fellowship, from 2002 to
2003, Mr. Kobach was counsel to Attorney General John Ashcroft.
In this position he served as the Attorney General's chief
legal and policy advisor on immigration law and border
security. The author of numerous books and scholarly
publications, Mr. Kobach is a summa cum laude graduate of
Harvard University with a BA in government. After graduating
first in his class from the Government Department at Harvard,
Mr. Kobach was a Marshall Scholar at Oxford University, where
he received a master's and a doctorate in politics. He returned
to the United States and received his J.D. from Yale Law School
in 1995.
Then we have Mr. Michael Hethmon. He is Staff Counsel for
the Federation for American Immigration Reform and a member of
the Maryland State Bar. He has published several law review
articles and has had material published on ILW.com, the leading
immigration law publisher. Mr. Hethmon has served as a
spokesman for FAIR in various media settings and has
participated on radio programs. He received a bachelor's degree
from the University of California Los Angeles, a master's
degree in international management at the Thunderbird Graduate
School of International Management, and his J.D. from the
University of Maryland School of Law.
Then also we have Professor David Cole. Professor Cole is a
Professor of Law at Georgetown Law School with an expertise in
constitutional law, criminal procedures, and Federal courts. He
has worked as a staff attorney for the Center for
Constitutional Rights and litigated a number of major first
amendment cases including Texas v. Johnson, and National
Endowment for the Arts v. Finley. Professor Cole served as a
law clerk to Judge Arlen Adams of the United States Court of
Appeals for the Third District. He is a legal affairs
correspondent for The Nation, a commentator on National Public
Radio, and the author of three books. Mr. Cole has received
awards for his civil rights and civil liberties work from the
American Bar Association, the National Lawyers Guild, the
American-Arab Anti-Discrimination Committee, Political Asylum
and Immigration Rights Project, and the American Muslim
Council. Mr. Cole received his B.A. and his J.D. from Yale
University.
At this time I'd ask the witnesses to please rise for the
oath. If you would rise and raise your right hand.
[Witnesses sworn.]
Mr. Gohmert. Let the record reflect all four witnesses have
been sworn.
I've been advised that the gentleman from Michigan, Mr.
Conyers, would like to make an opening statement. Is that
correct?
Mr. Conyers. Yes, Chairman Gohmert.
Mr. Gohmert. Then the Chair will yield 5 minutes to the
gentleman from Michigan.
Mr. Conyers. Right. Did you intend to make an opening
statement, sir?
Mr. Gohmert. I had mentioned earlier, as we started, that I
have an opening statement. In the interest of time that I would
just submit it in writing, and there was unanimous consent. I
offered and all these people here did not object, so----
Mr. Conyers. Well, I certainly won't object.
Thank you, Mr. Chairman, and Members of the Committee.
I want to welcome all the witnesses and let you know that
this is a very unusual time that we're in. First of all, we're
having limits put on the right of habeas corpus for those on
death row. We've got a Subcommittee hearing coming up on this
in the Subcommittee on Crime. In addition, we've just passed
another bill out of this Committee that would expand the
Federal death penalty provisions and mandatory sentencing on--
and it would have a detrimental impact on young people in
particular.
So we've got capital punishment provisions on the way and
habeas corpus limitations also coming out of the Subcommittee,
and today we're dealing with a subject matter that raises the
questions about how we deal with anti-gang--with gang violence
and what steps can be taken to deal with them.
And I am a little bit surprised that we are in the process
of considering a measure that is replete with constitutional
violations. I can't remember scanning through so quickly to
come across so many all at once. This bill empowers Homeland
Security to deport foreign nationals who have never committed
any crimes whatever. It has a procedure for designating
criminal street gangs that violates constitutional rights,
giving the Secretary of Homeland Security unchecked power to
blacklist domestic groups through a secret process with little
or no notice to be heard by others.
We have a system that to me I thought we had taken care of
in some earlier Supreme Court cases, but it looks like they
haven't been. The Alien Gang Removal Act now embraces guilt by
association, which has been dealt with by the Supreme Court in
other cases a number of years ago. We are concerned about the
treatment of gang crimes that would radically expand
deportation grounds for certain crimes that are already
criminalized.
We think--I would like to start off by positing this to the
witnesses, that there are sufficient criminal penalties and
process that would allow us to get at all youth criminal gangs,
all non-citizen gangs, within immigration law and with criminal
law, that would make a measure like this completely
unnecessary. And the idea that we could criminalize people who
have never committed a crime in their life within the scopes of
this proposal is quite staggering. And so I'm hoping that we
will have a discussion that can point to some of these issues,
and I welcome the witnesses as they come forward, and I thank
the Chairman for giving me the time.
Mr. Gohmert. Thank you.
We've been joined by the gentleman from California, Mr.
Darrell Issa, and Mr. Issa, would you like to make an opening
statement?
Mr. Issa. Very briefly, and I'll have----
Mr. Gohmert. The Chair yields for 5 minutes.
Mr. Issa. I ask unanimous consent to have my written
statement put in the record. But I do want to offer a
perspective in concert with the Ranking Member. When Mr.
Conyers says he's deeply concerned, I'm deeply concerned, but I
think from a slightly different perspective. I wonder if in
fact this country is going to continue to be the only country
on earth in which a guest, a non-citizen guest, is allowed to
operate in an organized gang that--in Los Angeles or in San
Diego or anywhere in the country, terrorizes communities,
reduces the quality of life for residents, both citizens and
non-citizens, and then say, ``But if you don't catch me with a
felony and incarcerate me, you can't send me outside the United
States.''
So I certainly hope that this piece of legislation on a
bipartisan basis will be looked at in light of the problem of
people who in fact should be deported but we have to wait until
we catch them in a specific criminal act, particularly a
felony, before we have a chance. That's not the standard in the
rest of the world. The standard in the rest of the world is, if
you're a guest, you are held to a higher standard of behavior
than in fact a citizen for whom deportation is not an
administrative remedy. And with that, I yield back.
Mr. Gohmert. The gentleman from California yielded back.
We've also been joined by the gentleman from California,
Mr. Dan Lungren. Would you like to make an opening?
Mr. Lungren. No.
Mr. Gohmert. All right. Very well.
At this time we're ready to proceed with opening--well,
we've been joined by the gentlewoman from Texas, Ms. Jackson
Lee. Would you want to make an opening at this time?
Ms. Jackson Lee. Yes, Mr. Chairman.
Mr. Gohmert. Very well. The Chair yields 5 minutes to the
gentlelady from Texas.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
And I acknowledge my Ranking Member of the Full Committee,
Mr. Conyers. I thank him for his presence here today and the
other Members.
Let me thank the witnesses for their presence here as well.
This is an important hearing because it's an opportunity
for the concern we have about terrorist gangs to have a full
hearing along with the restraints and concern that we have
about the automatic deportation of individuals on the basis of
association.
We all agree, Mr. Chairman, that violent immigrants who
commit crimes should be deported, and particularly we agree
that those who associate with violent gangs, now who are
springing up in many of our southern regions and particularly
on the border, should be in line for deportation, those who
perpetrate violent acts and those who may be associated with
gangs that ultimately may be engaged in terrorist acts.
But I think there is a clear demarcation, and that is that
sheer membership, sheer association should not equate to
deportation. And in the instance of the legislation that we
will be reviewing today, as I've read it, even if this gang has
been classified as violent or on the list on the basis of
crimes that the gang perpetrates, the gang may be in the
business of getting as many friends and recruits as they
possibly can, even to the extent of recruiting 10-year-olds,
such as what is happening in Houston, Texas, my question would
be, does that sheer association and membership equate to a
deportation? If that is the case, that is unacceptable.
So this is an important hearing because I believe in
keeping an open mind. I believe this legislation introduced by
Congressman Forbes on June 16, 2005, called the Alien Gang
Removal Act of 2005, has some positive elements regarding
dealing with gangs that perpetrate criminal acts. But in such
we have relied primarily on three basic strategies for dealing
with the problem of youth gangs, suppression which has meant
longer sentences and penalties, intervention through job
training, education and skills development in an attempt to
reform gang members, and prevention through school and
community based programs designed to reach out to at-risk
children before they become involved with gangs.
The Alien Gang Removal Act presents a new strategy. AGRA
would attempt to reduce the number of immigrant gang members in
the United States by changing our immigration laws. From my
perspective then, it eliminates intervention and prevention,
which are very important elements, and the question is whether
Federal jurisdiction should take the place of local communities
trying to fight against at-risk children engaging in membership
in gangs.
This bill would establish 3 new exclusion grounds. The
first would make someone inadmissible to the United States for
having been deported on the basis of criminal street gang
participation. Someone who has been deported is already
inadmissible regardless of the reason for deportation. Under
existing law, however, inadmissibility would only be for a 5-
year period. Under the new provision, inadmissibility would be
permanent.
The second would make an alien excludable if the
immigration inspector had a reasonable ground to believe that
the alien is a gang member entering to engage in unlawful
activity. I'm concerned that this would lead to profiling and
that aliens who have tattoos or other indicia of gang
membership would be excluded on little more than their
appearance. Once excluded, they would be permanently barred
from admission to the United States without judicial review.
The third would make someone inadmissible for being a
member of a group or association of three or more individuals
that have been designated by the Attorney General as a criminal
street gang. Another provision in AGRA would make membership in
a designated criminal street gang a deportation ground too.
Members of designated criminal street gangs also would be
statutorily ineligible for asylum, withholding and removal and
temporary protected status, and they would be subject to
criminal alien detention provisions.
Mr. Chairman, it is not whether or not you are a person
that should be deported because you are violent, you are
engaging in terrorist activities, you're a member of a gang and
you have participated in violence. It is a question of whether
random association equates to deportation of mass numbers of
individuals because we don't like them.
Mai Fernandez was our witness at the April 13, 2005 hearing
on imminent gangs--immigrant gangs. She is the Chief Operations
Officer for the Latin American Youth Center in the District of
Columbia. She works with gang members on a daily basis. She
explained at the hearing that most youth gang members in our
community are not criminals. According to Ms. Fernandez,
joining a gang gives a youth a group of friends to hang out
with and a sense of security which they cannot get elsewhere in
their lives. These kids are not super predators. They're kids
looking for a sense of belonging.
According to Houston's Anti-gang Office and Gang Task
Force, the gang known as MS-13 has been recruiting children
from local elementary schools. That is wrong, and it is wrong
from the children to join, but if they do join, their
membership alone may cause them to be deported, taken away from
their families and youngsters as young as 10-years-old.
In conclusion, Mr. Chairman, might I say that I find the
approach of a strict deportation on association to be
questionable minimally and wrong at best. I hope that we can
work together to solve this problem, but to also understand
that prevention and intervention are important.
I ask unanimous consent that the entirety of my statement
be submitted in the record. I yield back.
Mr. Gohmert. Hearing no objection, there is unanimous
consent for submitting the entirety of your written remarks.
I would also advise the witnesses today you'll be given up
to 5 days to revise and extend your remarks if you care to do
so. We are operating under a 5-minute rule. Each of you will
have 5 minutes to make an opening statement. We'll be very
strict with that, so please understand. But understand also the
testimony will not be lost because you will have an opportunity
to submit it in writing and make it a part of the record, and
it will be part of the permanent record.
So with that, Mr. Forbes, if you would, your time will
begin with your opening statement. Thank you.
TESTIMONY OF THE HONORABLE J. RANDY FORBES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF VIRGINIA
Mr. Forbes. Thank you, Mr. Chairman, and thank the Members
of the Committee for allowing me to be here. It is a privilege
for me to be here with the other members of the panel.
Mr. Chairman, I also have a written statement that I would
like to submit for the record, and I am just going to talk to
you outside of that written statement if it's agreeable. The
first thing I want to do is tell you I'm not going to repeat
all of the gang problems that we have in the United States
because I know that the Members of this Committee have heard
them, and at least at this point in time I don't think there's
any disagreement that we have an enormous gang problem that
we're facing in the country with as many as 750 to 800,000
criminal gang members.
Just in the last 4 years gang crimes have been up 50
percent, and if you just picked North Carolina in the last 2
years, there have been 18 MS-13 killings alone, Northern
Virginia 11, LA 8.
The important thing about this bill is it is a bipartisan
bill, and whenever we try to address the gang problem, one of
the things that always happens--this is like an old Casablanca
movie--we round up the normal suspects and everything in it is
unconstitutional. The other thing that we always find is this,
we always will find that there's two different strategies.
There are those who want us to wait until we have victims to do
something about it, and there are others of us who believe that
we can make the situation better before we get the victims.
There are three big pipelines that feed the gang problem in
the United States today. If we miss those pipelines we can
never solve the problem. The first one is the gang leaders and
the gang networks that continue to recruit and expand and
franchise their violence. We passed a bill a few weeks ago that
deals with those networks and will try to bring those networks
down.
The second problem is what Ms. Jackson Lee mentioned, in
that we allow environments of opportunity for gang recruitment,
whether it's broken families or loss of job opportunities, or
lack of education, and that's a whole other pipeline that we
have to look at.
But the third big pipeline, what this bill deals with, is
some of the immigration problems that we face. By testimony
given to this Subcommittee alone, we heard that MS-13 probably
has between half to two-thirds of their members that are here
illegally, the most violent gang in America today. Eighteenth
Street, 60 percent of their members here illegal; Surenos-13,
75 percent. Lil' Cycos, 60 percent of their people here
illegally.
Mr. Chairman, there are two big problems with that. The one
thing that we have is if somebody comes to our doors today,
wants to come in the borders, if they have a sign on their
forehead that says they're a member of the most violent
criminal gang in America, if they have stamped on their visa
application they were a member of that gang, that in and of
itself is not reason enough under our law to keep them from
coming into the country.
The second thing is, based on temporary protected status,
which we gave to people from El Salvador in 2001, we
essentially put a blanket of protection over criminal gang
members here illegally because under TPS if a criminal gang
member is outside of our doors today, and he has a sign that
says ``I'm here illegally,'' a sign that says ``I'm a member of
a violent criminal gang,'' he is protected by TPS and cannot be
deported out of the country. We think that's wrong.
And what this bill does is to say this. It says that when
somebody comes into our country, that we ask them whether or
not they're a prostitute, we ask them many other questions that
keep them out of the country. We think it makes good common
sense to ask them, are you a member of a violent criminal gang?
This bill would say we're not only going to ask them that, but
if they're a member of a violent criminal gang, we're not going
to give them admission into the country.
The second thing it says is, if you're here in this
country, if you're visiting in this country and you decide that
you're going to be a member of a violent criminal gang, then we
can deport you out of this country, and that is a reason for
deportation because there is no socially redeeming value for
individuals to be members of violent criminal gangs in the
country.
In addition to that, Mr. Chairman, what this bill will do
is allow the Attorney General to designate violent criminal
gangs in the country. We set forth a judicial review process
for that. We give notice to Congress for that so that we can
overturn that. We have a method for looking at and examining
that designation. And then once the Attorney General has done
that, Homeland Security then will be able to designate
individuals who are members of violent criminal gangs.
It would have to be proved, of course, in an immigration
hearing, but once that's done, if you're in this country, and
you're a member of a violent criminal gang, we can deport you.
If you're coming into the country we can stop you from coming.
We think that's an important component for stopping this huge
rise in violence from our criminal gangs, and we hope this
Committee will see fit to pass the bill.
[The prepared statement of Mr. Forbes follows:]
Prepared Statement of the Honorable J. Randy Forbes, a Representative
in Congress from the State of Virginia
Mr. Chairman, Ranking Member Jackson Lee, and members of the
Subcommittee, I thank you for inviting me to join you to discuss
efforts to strengthen our laws that will protect our communities from
violent gang members. Let me commend you at the outset for holding this
important hearing and for your willingness to examine this critical
issue.
According to the U.S. Justice Department, there are currently over
30,000 gangs and over 800,000 gang members who are active in more than
2,500 jurisdictions across the United States. Every city in the country
with a population of 250,000 or more has reported gang activity. Gang
activity has been directly linked to the narcotics trade, human
trafficking, identification document falsification, violent maiming and
assault, and the use of firearms to commit deadly shootings.
No longer is the ``gang problem'' limited to so-called urban street
gangs, or motorcycle gangs from the past--the violent gang epidemic is
national and even international in scope and extends into suburban and
rural communities, and has grown into organized, tightly-knit criminal
syndicates.
One of the most notorious gangs--MS-13--is international in scope
and has 8,000 to 10,000 active members operating a sophisticated
network of organized units in 31 states. MS-13 has a significant
presence in Northern Virginia, New York, California, and Texas, but can
also be found in Oregon City, Oregon, and Omaha, Nebraska.
Internationally, the gang is estimated to have as many as 50,000
members.
MS-13 is a violent gang comprised primarily of illegal immigrants
from Central America, which originated in Los Angeles and has now
spread across the country. They were recently dubbed by Newsweek as
``the most dangerous gang in America.''
Fortunately, through the leadership of Chairman Sensenbrenner and
members of the Judiciary Committee, the House passed with bipartisan
support, H.R. 1279, the Gang Deterrence and Community Protection Act of
2005 by a vote of 279 to 144. The passage of this ground-breaking
legislation marks the toughest and most targeted federal gang
legislation ever to come out of the U.S. House of Representatives. The
bill seeks to rip apart criminal gang networks by increasing tools and
resources for local, state, and federal police and mandating tough
sentences for violent criminal gang acts.
Yet, more must be done to win the fight against violent criminal
gangs. America's gang epidemic is not just a crime problem, but an
immigration problem as well. Our current immigration laws have not kept
pace with the flood of gang members who have entered our country over
the last several decades.
For that reason, I introduced H.R. 2933, the Alien Gang Removal Act
(AGRA), which would designate aliens who are members of violent
criminal gangs as an inadmissible class under the Immigration and
Nationality Act (INA). Currently, there is no specific authority under
the INA that allows for the deportation of an alien based on their
membership in a criminal gang. My legislation would build upon similar
provisions in the INA that render members of terrorist organizations
also inadmissible. My legislation starts with the basic principle that
there is no societal benefit to allowing aliens to come to the United
States as part of a violent criminal gang.
First, AGRA would put violent gang members on a fast-track for
deportation by designating an alien who is a member of a violent
criminal gang inadmissible for entry into the United States and
deportable under the INA. Currently, an alien's membership in a
criminal gang is not grounds for inadmissibility to the United States
in and of itself under the INA. The Alien Gang Removal Act would amend
the INA to give consular officers an automatic reason to reject entry
into the United States to any alien they know, or have reasonable
grounds to believe, is a member of a criminal gang.
While it is unlikely that an alien would admit to membership in a
criminal gang on his or her visa application, providing a false answer
to such a question would be grounds to charge an alien with immigration
fraud. If convicted, the alien could be fined and subjected to jail
time based on the circumstances of the offense. Also, while the
majority of gang members enter the United States illegally, our laws
should state the general principle that criminal gang members are
specifically inadmissible and deportable under the INA.
Second, my legislation would protect our neighborhoods from gang
members who have already entered the U.S. by allowing for the
deportation and mandatory detention of aliens who are members of a
violent criminal gang. My bill states that it is not enough to wait
until a gang member has committed a crime to deport them. If you join a
violent criminal gang, then you should lose the right to stay in the
United States.
Third and more importantly, AGRA would expedite the deportation of
alien gang members by barring most forms of immigration relief,
including Temporary Protected Status (TPS). Unfortunately, under
current law, alien gang members who have been granted TPS generally
cannot be returned to their native countries without having first been
convicted of a felony or other specified criminal offense. My
legislation would expand the bars to TPS to include affiliation with a
federally identified criminal gang.
Aliens from eight countries currently have temporary protection
from deportation. Among these are El Salvador (native country to the
MS-13 gang), Burundi, Honduras, Liberia, Montserrat, Nicaragua,
Somalia, and Sudan. The estimated number of aliens currently protected
range from 292 Montserratians to over 290,000 Salvadorans.
It makes absolutely no sense to allow gang members, many of whom
are here illegally, to be free from deportation until they have
committed a crime. Gang members who are shielded from deportation by
TPS are a significant problem that must be addressed through
legislation. While the exact number of gang members protected by TPS is
unknown, at an April 13, 2005 Immigration Subcommittee hearing, the
Department of Homeland Security stated that of the 5,000 gang members
detained under Operation Community Shield, approximately 350 had been
granted TPS. That means that because of TPS, we know there are 350 gang
members who will be back on our streets terrorizing our communities and
neighborhoods. What we do not know, however, is how many gang members
who are protected by TPS we would find if we examined the 800,000 gang
members the Department of Justice suggests are currently within our
borders instead of only examining the 5,000 gang members detained under
Operation Community Shield.
In order to offset the destructive influence of gang activity in
our nation, it is crucial that those who participate in gang activity
are identified and met with appropriate action. For the large number of
gang members who are foreign nationals, this goal would best be served
through their deportation and immediate removal from our communities--
regardless of their immigration status. H.R. 2933 is a fair and
reasonable response to further secure the safety of our communities,
and I would deeply appreciate the Subcommittee's assistance in moving
the Alien Gang Removal Act through the Committee and to the floor of
the House of Representatives. Thank you for your attention to this
important matter.
Mr. Gohmert. Thank you, Mr. Forbes.
At this time, we will hear from Mr. Kobach for 5 minutes.
I'm sorry. For the record, it should reflect that Mr.
Berman from California has entered the hearing early on in Mr.
Forbes' comments, and also Mr. Smith from Texas has also joined
us.
Ms. Jackson Lee. Did you note--excuse me, Mr. Chairman. Did
you note Mr. Berman has also joined us?
Mr. Gohmert. Yes, that's what I just--I'm sorry. I guess
you were talking when I said this, but yeah, I did note that.
Mr. Kobach, you have 5 minutes.
TESTIMONY OF KRIS W. KOBACH, PROFESSOR OF LAW, UNIVERSITY OF
MISSOURI-KANSAS CITY
Mr. Kobach. Thank you, Mr. Chairman. I will skip much of my
written comments, statistics on the extent of the gang problem.
I think the Committee is well aware of that.
But I want to pause on one point, and that is that--let me
give you a case study. The study is the city of Omaha. I'm good
friends with a police officer in Omaha. Omaha is not a place
you would normally think of as a gang-ridden city, but in fact
it has become exactly that. Omaha typically sees just over 20
homicides a year, but that's changing. In the final quarter of
2004, the gangs MS-13 and the 18th Street gang dramatically
increased their presence in Omaha, and in the last quarter of
2004 gang activity was up 29 percent, and in the first quarter
of 2005 it was up 39 percent, and the number of homicides has
risen accordingly. Omaha is now on pace to have the greatest
number of homicides in any year.
The police officers are scared. The police officers know
that they face a threat unlike any previous gang periods or
phases in this country's history. These are nationwide, indeed
continent-wide networks of gangs. They are very well armed and
they behave differently than gangs in the past have done. They
shoot to kill, and I'll talk a little bit more about that in a
moment. And their associations with other gangs around the
country are much tighter and much more well organized.
Now, the gangs that we face today in America's cities such
as Omaha--and of course there are much bigger gang problems in
places like the D.C. area and Los Angeles and New York--is that
these alien gangs have an advantage that previous gangs did not
have, and that gangs composed primarily of U.S. citizens do not
have; and that is that they have sanctuaries in foreign
countries. This gives them a real advantage in escaping law
enforcement. I'm of course referring to the fact that there are
several countries that refuse to extradite their citizens if
their citizens face the death penalty, or more recently in the
case of Mexico--since October of 2001--if they even face life
imprisonment.
This in effect allows the gang members to commit a serious
crime and then escape to their home country where they can
remain until they feel safe coming back into the United States.
I would note also that El Salvador, the nationality of the
majority of MS-13 gang members, also has a constitutional
provision prohibiting the extradition of any of its citizens to
a country where the death penalty is in force.
Now, this not only creates a sanctuary for the gang members
after they commit a crime in the United States, it also creates
a very disturbing incentive, and this is an incentive that
police officers have noticed. It's very difficult to document,
but it is simply this: the more serious your crime, the greater
the likelihood that your country's laws will offer you shelter
from extradition. It is a well-established fact that so many of
the MS-13 murders conclude with an execution style murder. The
victim is shot initially through the chest or some other part
of the body, but then the gang member assassinates the person
with a bullet to the head. It is often thought that this is not
only a means of intimidation, but it is also a means of
ensuring that the person cannot be extradited to the United
States, and then of course the person departs for El Salvador
or Mexico or wherever the destination is.
Clearly, this is a threat that law enforcement has not
encountered before. In the last few years, with the rise of
these illegal alien gangs, it is important that every possible
law enforcement tool be brought to the conflict, and that's why
immigration enforcement is so critical here, because so many of
the members are aliens.
Now, we know that Immigration and Customs Enforcement, or
ICE, has had some success with, for example, Operation
Community Shield, which in March resulted in the arrest of 105
MS-13 members. But that operation is limited to those members
who are--gang members who are already in violation of
immigration law. This bill, 2933, would expand the ability of
ICE to use immigration enforcement in a just and reasonable way
against gang members present in the United States.
There are basically three ways where it improves the
situation. One is by making membership in the gang--active
membership in a gang--which must be established I might add in
front of an immigration judge; it's not simply the mere
exertion by an Executive Branch official, and that of course
can be appealed to a Circuit Court of Appeals--making that a
basis for removal is critical. Another critical portion of 2933
is alleviating the restriction on removal to countries where
the alien's life might be in danger. And a third critical
component of 2933 is to raise the protection of temporary
protected status.
Now, under current law, for example, with Operation
Community Shield, the way that operation worked is that the
relevant police departments provided lists of known gang
members to ICE, and then ICE was able to take those lists and
run them against their data of all people lawfully admitted to
the country. And they were able to deduce who was not lawfully
admitted to the country.
Well, some gang members are actually legally present,
albeit not U.S. citizens, and this would allow them to expand
the number of gang members against which immigration
enforcement tools could be used.
The second aspect that I just mentioned was where a gang
member uses the protections of 241(b)(3)--that is, he can't be
removed to his home country because he fears reprisal or he
fears some sort of persecution in his home country. I have
personally seen this happen in my capacity representing the
United States in the courts of the United States. Lawyers
representing these gangs--these aliens, will use every means
they can to avoid deportation to the home country, and that
includes even cases where the alien himself has been a member
of a death squad. And I've actually argued a case of exactly
that. Using----
Mr. Gohmert. All right. Thank you. Your time has expired.
Thank you.
Mr. Kobach. Okay.
[The prepared statement of Kobach follows:]
Prepared Statement of Kris W. Kobach
THE SCOPE OF THE ILLEGAL ALIEN STREET GANG PROBLEM
Mr. Chairman and Members of the Committee, as you know, the alien
street gangs that are responsible for hundreds of murders in the United
States in the last few years present an extremely difficult law
enforcement challenge. As one police officer told me recently, these
gangs present a far more deadly threat than their predecessors.
Compared to the dominant gangs of the early 1990s, which were composed
primarily of U.S. citizens from inner-city areas, today's street gangs
are composed overwhelmingly of illegal aliens and are more violent,
more likely to kill, and more likely to operate within well-organized
criminal networks that not only span the country, but span the
continent.
A few statistics illustrate the scope of the problem. Mara
Salvatrucha-13 (MS-13), the most notorious and fastest-growing alien
gang, started as a Salvadoran gang in Los Angeles in the late 1980s.
Its association with El Salvador has always been an important part of
its identity, with gang members in many cities using the blue and white
national colors of El Salvador as their gang colors. MS-13's more than
10,000 members operate in at least 33 states. Those states are as far
flung as Alaska, Michigan, Idaho, Georgia, New York, and Nebraska. The
overwhelming majority of its members are illegal aliens, primarily from
El Salvador, but also from Honduras. The presence of MS-13 is
particularly strong in the metropolitan Washington, D.C., area
(including northern Virginia and southern Maryland), with an estimated
5,000 to 6,000 members. But MS-13 also has established a very large
footprint in areas that have not previously been subject to gang
violence. There are approximately 200 MS-13 members in Charlotte, North
Carolina. There are approximately 300 in suburban Long Island. And MS-
13 still remains smaller than the largest alien gang, the 18th Street
Gang--which started in Los Angeles with primarily Mexican membership
and then expanded nationwide. It is estimated to have more than 20,000
members in the Los Angeles area alone. In both gangs, the majority of
members are illegal aliens. The gangs generate cash in different ways
in different parts of the country. But by far, the most common forms of
activity are drug trafficking, theft, gun trafficking and immigrant
smuggling.
Where MS-13 or the 18th Street Gang establish a presence, the blood
inevitably flows soon thereafter. In Los Angeles, the various street
gangs accounted for 291 of the city's 515 homicides in 2004--an
increase of 12.4% in gang killings over 2003. In places newly
acquainted with alien gang activity, the numbers are smaller, but each
murder is more shocking to these once gang-free communities. In
Charlotte, for example, MS-13 members have committed at least 19
murders in three years between 2000 and 2003.
Consider the example of Omaha, Nebraska, not far from where I live.
Mid-sized Midwestern cities like Omaha have recently seen the growth of
illegal alien gangs--an entirely new phenomenon for local law
enforcement. Omaha is a city that typically sees between 20 and 30
homicides a year. However, in late 2004, there was a dramatic increase
in violence in south Omaha, perpetrated mainly by alien gangs. MS-13
and the 18th Street Gang increased their presence in the city, and this
is reflected in recent statistics. According to the Omaha Police
Department figures, total gang activity in the fourth quarter of 2004
increased 27% (over the same period the previous year), and gang
activity in the first quarter of 2005 increased 39%. The number of
homicides has risen accordingly, with the increase almost entirely
attributable to the gangs.
The alien gangs in Omaha control and perpetuate the drug trade
there. According to the National Drug Intelligence Center, the
marijuana in Omaha comes primarily from Mexican criminal gangs who
transport it into the state by road using private and commercial
vehicles. The same is true of the powdered and crack cocaine
distributed in Omaha. And contrary to popular misconception, the
majority of methamphetamine in Omaha comes from Mexico or California
through the alien gang network. Although methamphetamine can be
produced virtually anywhere, the alien gangs dominate the trade,
bringing it in from south of the border or from California. This once-
quiet city now hears the gunfire of alien street gangs with disturbing
regularity.
EXTRADITION BARRIERS
Gangs composed primarily of aliens possess an advantage over law
enforcement that other gangs do not have--sanctuaries in foreign
countries that refuse to extradite criminals eligible for the death
penalty. Those countries include Mexico and El Salvador. Mexico is the
most notorious example, with more than 3,000 individuals who are
suspected of committing murder in the United States now at large in
their home country of Mexico. Mexico has no formal extradition
arrangement with the United States. And since the Mexican Supreme
Court's ruling in October 2001 (that life imprisonment is
unconstitutional), that country has also resisted extraditing criminal
suspects who are eligible for life imprisonment if convicted. El
Salvador's constitution currently bans the extradition of Salvadoran
nationals.
This not only creates a sanctuary for gang members after they have
committed their crimes in the United States, it may also be
contributing to a disturbing incentive for gang members operating in
the United States. The frequency of execution-style murders carried out
by MS-13, the 18th Street Gang, and other gangs has been widely
reported. Many in the law enforcement community will tell you that some
alien gang members have intentionally and deliberately shot to kill,
including shooting wounded victims through the head. One prominent
theory is that many alien gang members do this in order to make sure
that their crime is first degree murder--serious enough to bar
extradition. Establishing the motive of such killers with certainty is
obviously problematic. But given gang members' frequent reliance on the
absence of extradition arrangements in order to evade U.S. law
enforcement, it is not at all unreasonable to suspect that many
intentionally heighten the severity of their crimes.
THE USE OF IMMIGRATION ENFORCEMENT AS A TOOL
IN FIGHTING ILLEGAL ALIEN GANGS
Because so many of these gang members are aliens without lawful
presence in the United States, sustained and focused enforcement
efforts by Immigration and Customs Enforcement (ICE) can have a massive
impact in fighting this national scourge. This was perhaps most
dramatically demonstrated in March 2005, when ICE announced the arrest
of 103 members of MS-13 in an operation spanning several weeks. Known
as Operation Community Shield, it led to the arrest of 30 gang members
in New York, 25 in the Washington, D.C., area, 17 in Los Angeles, 10 in
Newark, and 10 in Miami. Although all were arrested for violations of
federal immigration laws, approximately half had prior arrest records
of prior convictions for violent crimes.
This successful ICE operation was accomplished through the sharing
of information between state and local law enforcement. Local police
departments provided to ICE lists of names that those police
departments had compiled of known alien gang members. ICE was then able
to run that list through its databases to determine which, if any of
those aliens was legally present in the country. After determining that
the alien gang members were illegally present, ICE moved in with a
series of arrests.
Operation Community Shield was not the first use of immigration law
enforcement against these gangs. In October-November 2004, ICE agents
worked with local law enforcement in San Diego to arrest 45 MS-13
members. And in 2003, ICE worked with local law enforcement in
Charlotte to arrest and remove more than 100 MS-13 gang members.
This episode demonstrates well how focusing immigration enforcement
efforts against particular immigration violators can provide invaluable
support to local law enforcement in their efforts to stem gang
violence. It is an undeniable fact that immigration enforcement is a
tool that can be used to effectively combat gangs when illegal aliens
comprise a substantial proportion of gang members. Just as many members
of terrorist organizations were removed after 9/11 on immigration
violations rather being prosecuted in criminal courts, so to
immigration enforcement can serve to remove illegal aliens who pose a
danger to the community due to their membership in violent gangs.
THE PROVISIONS OF H.R. 2933
Turning now to the provisions of H.R. 2933, it is clear that this
bill, if enacted, would be very helpful in fighting alien street gangs.
In my judgment, the three most useful aspects of the bill from a
federal immigration enforcement perspective are the fact that it makes
membership in a designated gang a basis for removal, the fact that it
eliminates restrictions on removal to countries where the alien's life
would be in danger (under INA Sec. 241(b)(3)), and the fact that it
eliminates restrictions on removal to countries where ``temporary
protected status'' (TPS) applies (under INA Sec. 244(c)).
The first aspect would come into play whenever ICE launches an
effort like Operation Community Shield and obtains lists of suspected
gang members provided by local law enforcement. Under current law, ICE
can only arrest those gang members who are not lawfully present in the
United States. H.R. 2933 would expand the list of arrestable alien gang
members to include those who happen to be lawful permanent residents or
who are lawful nonimmigrant visa holders. As I have already noted,
illegal aliens comprise the majority of gang members in these
organizations, particularly in MS-13 and the 18th Street Gang.
Nevertheless, there are some alien gang members who do have lawful
status. H.R. 2933 would allow ICE to remove those alien gang members as
well.
The second aspect comes into play at the stage of removal
proceedings. I have personally seen this happen when I have argued
removal cases for the United States in federal court. Lawyers assisting
criminal aliens who face removal will use any and every legal hook they
can find to keep their client in the United States, including the fact
that the alien himself was an abuser of human rights in his home
country and now fears reprisals. I kid you not. Our laws are routinely
twisted by aliens facing removal so that provisions designed to protect
victims of human rights abuse end up protecting the abusers themselves.
Without this provision in H.R. 2933, some alien gang members might be
able to evade removal. For example, one of the MS-13 gang members
arrested on March 13, 2005, during Operation Community Shield, in
Hollywood, was a former member of the Salvadoran military who has prior
convictions in the United States for robbery, possession of a dangerous
weapon, and mail theft. Depending on the specific facts of his case,
which I have not seen, he may attempt to claim that he cannot be
removed to his home country under INA Sec. 241(b)(3).
The other barrier to removal occurs when aliens are citizens of
countries with temporary protected status. Although TPS protections do
not apply to aliens who have been convicted of a felony or of two or
more misdemeanors in the United States (under INA Sec. 244 (c)(2)(B)),
TPS protections do prevent the immediate removal of an alien gang
member not yet convicted of a felony in the United States. Removing TPS
protection for gang members is of crucial importance if this bill is to
have any serious effect on MS-13. MS-13 is primarily a Salvadoran gang,
with substantial numbers of Honduran nationals as well. Salvadoran
nationals have been sheltered from removal under temporary protected
status since March 9, 2001, after the country suffered extensive damage
from earthquakes in January and February, 2001. And that status was
most recently extended on January 7, 2005. Honduran nationals in the
United States have been sheltered by TPS since January 5, 1999, shortly
after Hurricane Mitch swept through the area. That status was most
recently extended on November 3, 2004. It is absolutely essential that
members of violent alien gangs not be able to exploit natural disasters
in their home country in order to continue to prey upon American
society. H.R. 2933 will remove that possibility.
CONSTITUTIONALITY OF H.R. 2933
H.R. 2933 rightly makes membership in a criminal street gang a
basis for inadmissibility or removal. This is entirely within the
constitutional authority of Congress. The most likely challenge to such
an act would claim that membership in a such a gang is protected by the
First Amendment's protection of ``the right of the people peaceably to
assemble.'' Such a challenge would fail, for two reasons. First, the
protections of the First Amendment do not apply to violent activity.
Even the most expansive judicial iteration of the right to assemble,
that of the Supreme Court in NAACP v. Claiborne Hardware Co., 458 U.S.
886 (1982), stated clearly that associational rights do not extend to
violent activity: ``The First Amendment does not protect violence.
`Certainly violence has no sanctuary in the First Amendment, and the
use of weapons, gunpowder, and gasoline may not constitutionally
masquerade under the guise of ``advocacy.' '' Id. at 916 (quoting
Samuels v. Mackell, 401 U.S. 66, 75 (1971) (Douglas, J., concurring)).
Second, there must be an advocacy or speech element in the group's
activities. It would be absurd to suggest that alien gangs existing
solely to further criminal activity, are akin to the civil rights
organizations considered by the Court in Claiborne Hardware. They do
not carry a message or exercise speech rights in any constitutionally
meaningful sense. Plainly, a challenge to H.R. 2933 based on an
associational rights claim would be the longest of long shots, with no
real basis in law.
CIVIL FORFEITURE
Although I am strongly supportive of H.R. 2933, I do believe that
it could be substantially improved by this committee. I have submitted
amendatory language to committee staff that would make a massive
difference in its effectiveness. As it stands, H.R. 2933 will remove
barriers to more effective use of immigration law enforcement against
members of alien street gangs. However, it does not transform the law
enforcement landscape fundamentally. If this committee wishes to
dramatically improve the ability of local law enforcement to deal with
these criminal predators, there is a means of doing so that has already
been proven effective in other contexts--civil forfeiture of assets.
A basic problem with the use of removal proceedings against these
gang members is that so many of them return to the country with
impunity after being removed. The immense problem of prior deportees
returning to the United States can be seen in the thousands upon
thousands of reinstatements of prior removal orders and encounters of
prior deportees by federal immigration enforcement officers. It is an
undeniable fact that many of these career criminals move back and forth
across our borders with impunity. The threat of being removed again is
simply no deterrent whatsoever for these individuals.
Civil forfeiture of assets would change the calculation
substantially. If an alien gang member knew that there was a high
probability that law enforcement officers could seize all property used
in his criminal gang activity, including his automobile, any equipment
used the commission of his crimes, and the proceeds of his crimes, he
would have substantial reason to relocate his gang activities outside
of the United States and remain there. The risk of facing civil
forfeiture would dramatically increase the cost of returning to the US
to ``do business.''
Judges would oversee the forfeiture of assets, applying the
necessary protections of due process, ensuring that only ``tainted''
property is seized, and ensuring that the requisite connection with
criminal gang activity is established. For two decades, the courts of
the United States have reviewed the civil forfeiture provisions of U.S.
law dealing with drug trafficking, and have repeatedly held these
provisions to be constitutional, while delineating the specific
procedural protections that must be provided. The proposed amendments
that I have submitted to this committee will likewise withstand
constitutional scrutiny.
Civil forfeiture of assets has substantially altered the playing
field in favor of law enforcement in the war against drugs. Through the
use of civil forfeiture, prosecutors are not only able to incarcerate
drug dealers, but also able to hobble their operations financially. We
must similarly change the game in immigration enforcement if we are to
stop criminal gang members from entering and reentering the United
States with impunity. Such aliens not only have no right to prey upon
our society, they have no right to the proceeds of their violent and
destructive activity.
CONCLUSION
In conclusion, I commend the Members of the Committee for taking up
this urgent issue. It is quite literally a matter of life and death.
The bloodshed brought by alien gangs to the streets of our country must
be met with every available law enforcement tool. I urge you to
recommend H.R. 2933 favorably, and I strongly suggest that you augment
its effect by including civil forfeiture provisions.
Mr. Gohmert. Mr. Hethmon, you have 5 minutes.
TESTIMONY OF MICHAEL M. HETHMON, STAFF COUNSEL, FEDERATION FOR
AMERICAN IMMIGRATION REFORM
Mr. Hethmon. Mr. Chairman, thank you for the opportunity to
present the views of FAIR in support of H.R. 2933.
In assessing legislation like this, FAIR looks first to see
whether the proposed bill represents reform in the national
interest, which is expressed in the 7 principles for
comprehensive reform, which are attached to our statement. We
look also to see whether the bill meets a genuine unmet need in
existing law, and third, we look carefully at the effectiveness
of the solution within the context of existing restraints that
have been imposed by Congress, the budget program integration.
And, Mr. Chairman, our members around the Nation commend
the sponsors for this bill for their focus on finding solutions
to the alien criminal gang problem in this country.
And while H.R. 2933 is not a comprehensive solution, it is
demonstrably in our national interest, it responds to a
dangerous vulnerability in public safety, and can be feasibly
integrated into our existing immigration enforcement scheme.
Previous hearings and previous witnesses have spoken on the
impact and scope of the criminal alien gang problem, and I will
not touch on this at this point. However, I would say the role
of foreigners in the rise of criminal gangs is undeniable, and
any solution that does not closely integrate effective
immigration law enforcement will fail.
H.R. 2933 would adapt the regulatory scheme that has been
created by Congress and found to be effective in identifying,
detaining and removing aliens who are terrorists or supporters
of terrorist activities, and apply it to the functionally
related gang activities of narco-terrorism, human trafficking
and the collateral crimes of violence.
The bill will, in our view, for the first time allow the
removal of alien street gang members who otherwise would have
status to remain in the United States either as lawful
permanent residents or non-immigrant visa holders. Aliens
illegally in the United States, who are already removable,
could also be charged under the new section so as to limit
their eligibility for relief from removal.
Now, the need for this kind of legislative approach, in our
view, is regrettable but compelling, and I say regrettable
because we believe that the broad factors that account for most
of the appalling growth in alien criminal gang activity in this
country all arise from the failure of Congress over more than a
generation to control illegal immigration.
The three factors I would mention at this time would be the
failure to require and support effective border control and
interior enforcement. A second factor would be the apparent
willingness of Congress, going back to the 1970's, to use
refugee policy as an expedient way to deal with the upheavals
that have followed our intervention in third world countries,
notably in Central America. And finally, the third factor would
be the blowback from the failure of Congress to protect the
American workplace from illegal employment.
Mr. Chairman, we view this tough legislative approach that
has been taken by Representative Forbes to be necessary and
compelling. Previous approaches in the previous situation show
massive failure, but unfortunately, we cannot turn the clock
back. Although H.R. 2933 takes, we believe, a pragmatic
approach to this problem, FAIR also believes that the existing
antiterrorist provisions on which this legislation has been
modeled, responsibly--have been responsibly adapted--excuse
me--to avoid civil liberties concerns.
For example, we would note that the authority of DHS in the
existing legislation to consider classified information to
designate a foreign terrorist organization under existing law
is not present in the procedures for designation of a criminal
street gang.
Now, in assessing the potential for detention and removal
bills, FAIR relies often upon the experience of our members who
work in the immigration law field, and the feedback on this
bill has been very positive. They tell us that H.R. 2933
supports local law enforcement by closing loopholes and
providing new avenues to combat the problem.
They believe it will be an effective weapon against drug
cartel members or affiliates who are foreign nationals, but who
would not otherwise be removable from the United States. They
believe the new grounds of removability could be put to
immediate use to break up violent street gangs that work as
foot soldiers, hit-men or supporters, and who are vital links
in the food chain of trafficking organizations.
Our members would like to make a technical suggestion they
believe could increase the effectiveness of this legislation.
They believe that the threat caused by alien gang members
within the U.S. is so grave that it would be appropriate to add
the grounds of inadmissibility in H.R. 2933 to the expedited
removal process in the Immigration Act Section 235(c)(1).
We have also included as an attachment to our testimony, a
list of additional loopholes that the Committee might want to
consider in making this approach more effective.
[The prepared statement of Mr. Hethmon follows:]
Prepared Statement of Michael Hethmon, Esq.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Gohmert. Thank you, Mr. Hethmon.
Mr. Cole, you have 5 minutes. Let's go ahead and take your
testimony.
TESTIMONY OF DAVID COLE, PROFESSOR,
GEORGETOWN UNIVERSITY LAW SCHOOL
Mr. Cole. Thank you, Mr. Chairman. I'd ask that my written
remarks be incorporated in the record.
Mr. Gohmert. That's been granted.
Mr. Cole. I want to make four points about this bill.
First, that it imposes guilt by association, resurrecting the
worst tactics of the McCarthy era, targeting people not for
their own individual culpable conduct, but for their mere
association with groups that we have blacklisted.
Second, that the procedure by which we blacklist--we would
blacklist groups under this bill--is on its face
unconstitutional and in conflict with governing decisions of
the D.C. Circuit.
Third, that the bill radically expands the grounds for
deportation for crimes from aggravated felonies, which is
already a very broad concept, to essentially minor misdemeanor
assault offenses that merit no jail time whatsoever.
Nonetheless, they would be deportable offenses under the
statute.
And fourth, that this statute, by barring asylum and
withholding to people based solely on their association in
blacklisted groups, violates our obligations under
international law not to send people back to countries where
they're going to be persecuted simply because we find that
they're a member of a group we don't like. It's one thing to
send someone back to a country to be persecuted where they have
been found to be a serious criminal or a terrorist, it's
another thing to send someone back to a country where they're
going to be persecuted simply because we find that they're a
member of a group that we don't like, without any showing that
they've engaged in any criminal activity.
Terrorism, crime, gang crime, violent crime, they're all
problems, they're all serious problems that we need to respond
to, but the challenge here, as with the challenge with respect
to terrorism, is whether we can respond while remaining true to
the principles upon which this country was founded.
Unfortunately, this bill fails in remaining true to those
principles. So let me talk about those four points.
First, it imposes guilt by association. It is already a
deportable offense for a gang member, or indeed any other
foreign national who is convicted of an aggravated felony, a
very broad term that as this Committee no doubt knows, includes
misdemeanors, misdemeanors, includes shoplifting crimes and the
like. What this bill does is make people deportable who have
never committed a crime in their life, who are not suspected of
committing a crime, who are merely deemed by the Department of
Homeland Security to be a member of a group which is deemed by
the Attorney General to be a bad group. Bad groups have bad
people in them. They also have good people in them. This bill
makes no distinction between the two. It deports anyone who is
found to be a member of any group which has been blacklisted by
the Attorney General. That's guilt by association.
If you took the McCarthy era laws that this Congress
repealed in 1990, and you just substitute ``criminal street
gang'' for ``communist,'' that's what this bill would be. It
essentially takes that approach where we punished people not
for their own individual culpable conduct, but for their
association with groups that we didn't like, and rendered them
deportable. That's what this bill does, and it violates the
first amendment right of association, and violates the fifth
amendment right of an individual to be treated as an individual
and not treated as culpable based on your associations.
Secondly, the designation process is patently
unconstitutional. It provides no notice to the group that is
designated. It provides no opportunity to the group that's
designated to provide any evidence in its defense. It doesn't
even allow the group to approach the Attorney General about its
designation until 2 years after it's been designated.
And although it gives the gang the right to go to court to
challenge its designation in court, in the D.C. Circuit, it
doesn't allow the group to provide any evidence in challenging
its designation. The evidence is solely that which has been
created in a one-sided administrative process with no notice
and no opportunity to respond. That very process has been held
unconstitutional by the D.C. Circuit in the National Council of
Resistance of Iran case, in the context of foreign terrorist
organizations with presence here in the United States. A
fortiori, it violates the Constitution with respect to domestic
groups of three or more individuals who happened to have
committed two or more gang crimes at some point in their
history.
Third, it radically expands the grounds for inadmissibility
and deportability far beyond your aggravated felonies, to--as I
point out in my testimony--misdemeanor assault offenses that
are found by the criminal justice system to merit no jail time
whatsoever. We would turn those into deportable offenses that
not only render the person deportable, but deny him any relief
whatsoever.
I'll conclude there.
[The prepared statement of Mr. Cole follows:]
Prepared Statement of David Cole
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Mr. Gohmert. Thank you, Mr. Cole. Your 5 minutes expired.
That last buzzer was indicating we have 10 minutes left to
go vote, and then I'm informed that we'll have another 15-
minute vote after that, followed by another 5-minute vote. So
we'll hopefully be able to reconvene perhaps as early as 4:20
back here. I'm sorry for the delay.
Mr. Berman. Mr. Chairman?
Mr. Gohmert. Yes, Mr. Berman?
Mr. Berman. Could I just ask you a question?
Mr. Gohmert. Surely.
Mr. Berman. I'm curious in the context of Congressman
Forbes' testimony and then Professor Cole's testimony, would it
be possible before we marked up a bill like this to submit to
the Justice Department a question about--just the Department's
opinion about the constitutionality of some of these
provisions?
Mr. Gohmert. It certainly sounds reasonable.
Mr. Berman. Thank you.
Mr. Gohmert. So we will--I'll tell you, let me just ask one
question, one question quickly and reserve the balance of my
time.
Mr. Cole, you're obviously a constitutional scholar. Is
there a constitutional right to be in this country in violation
of the United States immigration laws?
Mr. Cole. Well, I think the answer to that is it depends on
whether the immigration laws are themselves constitutional. So,
for example, if we make----
Mr. Gohmert. That's all right. That answered my question.
Mr. Cole. Okay.
Mr. Gohmert. Your answer basically, it depends.
All right, thank you. We will be in recess until 4:20
unless the vote takes longer. Thank you very much.
[Recess.]
Mr. Gohmert. I thank you for your patience everyone. We
do--for the record, the four witnesses who were previously
sworn are back here for the hearing, and we do have the
gentlelady from Texas, Ms. Jackson Lee. We also have Mr.
Inglis. Anyone else? No, that's it for now, okay.
So we will resume the hearing, and at this time the Chair
recognizes the gentlelady from Texas, Ms. Jackson Lee, for 5
minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
I think we started out by suggesting that we all are on
common ground in protecting the homeland, and particularly
weeding out terrorists or violent gangs in a manner that would
be protecting of the homeland, but I think we also realize that
compliance with constitutional provisions is warranted as well.
I might add that I believe this bill covers individuals in a
legal permanent status, means that they are not at citizenship
level but they also are able to offer their lives in the United
States military in Iraq and Afghanistan and other places around
the world.
So I really strongly feel that we've got to find, one, an
answer to Mr. Berman's question, which is what the Justice
Department might--as to how they might assess this legislation,
and I am very grateful the Chairman believes that this would be
an appropriate review process, is to get an assessment analysis
by the Department of Justice.
Let me ask Mr.--Congressman Forbes this question regarding
the point that I made earlier. I think you said something to
the effect that intervention and prevention are meritorious, at
least as a separate legislative initiative. You indicated if
you join a violent criminal gang that you should lose the right
to stay in the United States. I indicated to you that MS-13,
one of the gangs that might happen to be on the list, is
already recruiting in our elementary schools, such that some
elementary school child might be vulnerable enough to join or
to associate with a gang with the name of MS-13. Would you be
willing to modify your bill to provide an exception for
children who have not engaged in criminal activity, and only by
the sheer existence of the group in their neighborhood,
possibly named Ms-13, and their foolishness in associating
themselves with that group, might be caught up in your
legislation if it was passed?
Mr. Forbes. Well, first of all, Congresswoman, I would not
be so presumptuous as to say what the Committee may or may not
pass in an amendment, and if they saw fit to put that amendment
in there and it passed, certainly I would still support the
bill.
I think one of the things that we need to recognize though
is that as I've traveled across the country and I've looked at
phone calls that we've had and letters that we've had across
the country from people in various groups that have asked us to
support this legislation, never, never once have I heard anyone
say that we have been overzealous in the enforcement of our
immigration laws. In fact, it has been just the opposite.
I think with this legislation what we find Homeland
Security doing is they would never be going after the second
grader or the third grader. The people they would be going
after would be those gang members that they feel are dangerous
to the community and are here, that should be deported.
Certainly, I don't think anyone in here is talking about
getting a second grader or a third grader. However, I will tell
you, as you move into teenagers, especially as we talked about
in our previous bill, one of the things these gang leaders do
very, very well is work the system, and they will end up
getting teenagers that are doing their actions for them if they
think there's a loophole there, but I would----
Ms. Jackson Lee. I don't have too much time. I appreciate
the gentleman--I'd appreciate the gentleman working with us on
the idea of the number of young people that could be caught up
in this fishnet.
Mr. Cole, I'd like to yield the rest of my time to you
because I don't believe you sufficiently finished your analysis
on the potential unconstitutionality of this effort. You know,
we run up against those who are law enforcement, who think that
we are against them, and I will put my record up against anyone
in terms of support for law enforcement around this Nation. I
think all of us believe in a Nation of laws. I have always said
that we are a Nation of laws and that we're a Nation of
immigrants. I also said that immigration does not equate to
terrorism.
Help us understand that the wide net of this legislation
may in fact also pull in citizens, if that is the case. But if
that is not the case, then focus specifically on some of the
vulnerabilities of this legislation in terms of relief,
designation, inability to protest legislation, and the point
that you made, which I thought was very valid, that you have no
provisions in there to defend yourself, meaning that you may go
into court, but you can provide no evidence to suggest that you
are not or should not be on the list. And I thank you very much
for your presentation.
Mr. Cole. Thank you. Well, I think the place to start
really is that there's nobody from ICE here saying, ``We don't
have sufficient resources to go after gang members.'' Mr.
Garcia testified before this Committee a short while ago, and
was very proud about talking about ICE's efforts to go after
gang members, and did not say, ``We don't have sufficient
authority. We can't do it. We need you to make guilt by
association the modus operandi of the day. We need you to
return to the days of the McCarran-Walter Act.'' No. He said,
``We've got resources. We're doing it. It's an ongoing
process.'' So why the rush to infringe on first amendment
rights?
Secondly, it seems to me that you've already got tremendous
resources under immigration law. Any gang member who's out of
status can be deported. Any gang member who commits an
aggravated felony can be deported. One of my colleagues on the
panel said that one-half to two-thirds of the members of MS-13
are here illegally under our current immigration law. That
means that one-half to two-thirds can be deported. It's not a
question of the law not being sufficient, it's a question of
resources, it's a question of priorities.
And so this it seems to me, very premature, totally
unnecessary to deal with the problem, and raise exactly the
problem that you identified, which is that it sweeps up
innocent people who have committed no crime, who are not in
violation of their immigration status, who are 10-years-old,
who are permanent residents and who have just joined a group
because, you know, in their community that's the socially--
that's what you do, but have never intended nor engaged in any
kind of illegal activity.
Those people have no right to defend by saying that they
engaged in no criminal activity. They have no right to defend
by saying the group they joined is not in fact a gang. The gang
has no right to tell the Attorney General that they're not a
gang. I mean this bill simply ignores the distinction between
guilt and innocence.
Ms. Jackson Lee. I thank the gentleman.
Mr. Hostettler [presiding]. I thank the gentlelady, and I
thank the Subcommittee for your indulgence. I apologize to the
members of the panel. Thank you for being here today. I will
move straight into questions.
Professor Kobach, in his testimony, Professor Cole states
that H.R. 2933 would be unconstitutional because of
similarities to foreign terrorist organization provisions and
other laws. Do you agree?
Mr. Kobach. No, I do not agree. And if I may divide my
answer into two parts. Professor Cole asserts that there are
basically two constitutional problems. He says first there's a
right of association problem with this statute, the proposed
statute, and also that there's a due process problem.
To look at the right of association claim that Professor
Cole makes, I think it is a--it is fair to say that it is a
long shot at best. Such a challenge fails for two reasons. The
first is that the protections of the first amendment right to
peaceably assemble have to be--can only be triggered when there
is a speech or an expressive content in the association's
organization. Even the most expansive judicial iteration of
that, in the Claiborne case, stated very clearly that the
protections of the first amendment right to assemble do not
extend to violent activity. If I may quote from the Court,
``The first amendment does not protect violence. Certainly
violence has no sanctuary in the first amendment, and the use
of weapons, gunpowder and gasoline may not constitutionally
masquerade under the guise of advocacy.''
Second, to trigger the first amendment associational
rights, there must be some speech element in the group's
activities; and I think it's absurd to suggest that these alien
street gangs are engaged in political advocacy or social
advocacy or any other kind of advocacy. They are not exercising
speech rights in any meaningful sense.
Let's imagine that there was a gang that did have both an
illegal activity--a criminal activity component--and an
expressive activity component. The Supreme Court has clearly
held that membership even in a dual-purpose organization like
that is not only a basis for removal, as the Supreme Court held
in Galvan, but it's also a basis for criminal prosecution,
which, the statute contains--this proposed statute contains
none of--in the Scales case.
Now, basically, there's only two types of constitutional
association claims you can bring: an expressive one under the
right to assemble, as I've just described, and also one under
the right to intimate association, which is found in the
fourteenth amendment, and was expanded upon in Griswold and in
Roberts v. Jaycees. This clearly is not of that category
either. So there's no first amendment or associational problem
with the statute.
Getting to his due process claim, Professor Cole cites the
D.C. Circuit case of National Council of Resistance of Iran in
support of his contention that there would need to be greater
notice provisions and due process provisions for the
designation of these alien gangs. However, he neglects to
mention an important distinction between H.R. 2933 and the
law--the Antiterrorism Effective Death Penalty Act--that was at
issue in that case. And that is, that that act allowed the
immediate freezing of assets of an organization upon
designation. And in the case the Circuit Court for the District
of Columbia specifically and explicitly tied its holding to
the, ``the invasion of fifth amendment protected property
rights,'' which Galvan v. Press entitles the plaintiffs to--
said that the plaintiffs are entitled to the due process of law
if property rights are immediately triggered by the or taken
away by such designation.
There is no such invasion of property rights here. So while
it is certainly interesting to imagine what National Council of
Resistance of Iran might have said if it was based on something
other than the seizure of assets. That's largely irrelevant to
2933. So I don't see any due process problem with this case.
Now, if, presumably, Professor Cole and others out there
might try to persuade the D.C. Circuit some day to expand its
holding in that case to other areas where the violation was of
something other than property rights, the Committee may wish to
consider a few minor amendments that might delay the
implementation or the effective date of the statute to allow a
slight notice provision. Those changes could be easily made,
but as it stands now it is not unconstitutional; and there is
no first amendment violation or due process violation in it.
Mr. Hostettler. Thank you, Professor, very much.
I'll yield back the balance of my time, and yield to the
gentleman from Michigan, Mr. Conyers, for 5 minutes, the
Ranking Member of the Full Committee.
Mr. Conyers. Thank you, Mr. Chairman.
I thank all the witnesses for their testimony.
I just wanted to pick up on our colleague, Mr. Forbes'
point, that we have no way to prevent acknowledged gang members
from entering the country, even if they had a stamp on their
hand, that we wouldn't be able to stop them.
But I've got a section here, 8 USC 1182, section 212, that
says: Classes of aliens ineligible for visas or admissions, and
then: ``Security and related grounds. In general, any alien who
a consular officer or the Attorney General knows or has
reasonable ground to believe seeks to enter the United States
to engage solely, principally or incidently in activities that
violate the laws and evade the laws, or any other lawful
activity is excludable.'' Do you agree?
Mr. Forbes. Do I agree with your first statement that my
testimony said that there was no way of keeping gang members
out, or do I agree with the statement that you just read that
the law----
Mr. Conyers. The statement that I just read.
Mr. Forbes. The statement that you read is correct, but my
testimony was not the way you stated it. What I said in my
testimony--and I'll restate it----
Mr. Conyers. No, you don't have to. If you agree with this,
I'll get corrected later on.
All right, let me just move on. You know what the 5-minute
rule is like.
What I'm troubled by is the fact that we have so many
problems with guilt by association--well, let me just start
here, Professor Cole. We might be in this bill imposing guilt
by association on individuals who never commit or support any
criminal activity. Do you think that's possible in this bill,
Mr. Forbes, Congressman Forbes?
Mr. Forbes. I would say, Mr. Conyers, that one of the
things that I disagree with Mr. Cole on, on page 5 of his
testimony is he does not----
Mr. Conyers. No, no, just on this point alone.
Mr. Forbes. I believe that if it's a member of al-Qaeda
here, that we want those individuals out of the country whether
we can prove that they've committed a criminal act or not. I
believe if there's a member of a violent criminal gang here, we
want them out of the country whether we can prove that they've
committed a crime or not because we want to protect victims
from occurring.
Mr. Conyers. Okay. Thank you, sir.
What do you say to that, Mr. Hethmon? Do we use guilt by
association in this bill? And that's what's worrying me.
Mr. Hethmon. I think that the terms ``guilt'' and
``innocence,'' they don't fit in this context at all. Remember,
we're talking about immigration law, where detention and
removal are not criminal punishments, and whether someone is
guilty or innocent really isn't the issue. Constitutionally,
the----
Mr. Conyers. In other words, that if someone hasn't
committed any criminal activity we could deport them under the
provisions of this law and that would not be too troublesome to
you?
Mr. Hethmon. Well, I think the vast majority of people who
are deported from the United States are not done on the basis
of a criminal conviction.
Mr. Conyers. No, but----
Mr. Hethmon. That's in an essential----
Mr. Conyers. --but I'm talking about this bill.
Mr. Hethmon. --aspect of immigration law.
Mr. Conyers. Yeah. I'm talking about this bill. Mr. Cole,
Professor Cole's suggesting that this is what would happen.
Mr. Hethmon. Well, he's posing a hypothetical which really
is not relevant to immigration law.
Mr. Conyers. Why would you put a hypothetical in here,
Professor Cole, and we're studying hard case law? Please.
Mr. Cole. I don't consider this to be a law school exam. I
consider this to be real life, and I think that this bill is
meant to have effect on people with real lives. And as written,
it makes any person who's ever been associated with any group
that the Attorney General decides to put on a blacklist through
a process that affords no opportunity to challenge it,
automatically subject to mandatory detention, deportation and
barred from any form of relief. And that concerns me, not as a
hypothetical. That concerns me because it seems to me it's
Congress's obligation to abide by the terms of the
Constitution, abide by principles like individual culpability,
abide by principles like due process, and deal with real
problems like violent crime by targeting violent crime and
violent criminals, and not by targeting people who have engaged
in no criminal activity whatsoever. And that's where this bill
goes wrong.
Mr. Hostettler. The gentleman's time has expired.
Mr. Conyers. Thank you.
Mr. Hostettler. And to make a correction for Mr. Cole. You
said ``any person that has associated can be subject to
deportation.'' You mean a non-citizen, correct?
Mr. Cole. Of course. This is an immigration bill, which is
what makes it easier for Congress to disregard the rights of
those who are affected because they're not people who vote, but
it's--nonetheless, they are, as the Supreme Court has reminded
us very recently, they are fully protected by the first and
fifth amendments to the Constitution the same way that U.S.
citizens are, and it is our obligation to protect their rights
as much as it is to protect the rights of our sons and
daughters.
Mr. Hostettler. But the categorization as ``any person.''
Mr. Cole. It goes without saying, this is an immigration
bill. It applies to foreign nationals only.
Mr. Hostettler. Well, if it goes without saying then it is
said that any person can be deported, which any person includes
citizens. And so----
Mr. Cole. Right. And in this context where we're discussing
an immigration bill, I apologize, Mr. Chairman, but if I use
the term ``person'' to describe a foreign national
occasionally, you can deem it to mean foreign national.
Mr. Hostettler. Thank you.
The Chair recognizes the gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
As I heard the litany of things that we should be abiding
by, abide by the Constitution, abide by this law, abide by that
law, I can't help but think shouldn't we force people for a
change to abide by the immigration laws that we have? And
that's a rhetorical question. It just seemed to be begged by
the litany of abidings that were offered.
And I guess from my background as a judge and having seen
violent gang members prosecuted in my court for murder, for
some horrible actions, and having seen issues come to bear
about whether or not individuals in the gang did more than just
stand there and watch a poor Hispanic young man be brutally
murdered. Did they aid or abet? Is there a criminal offense
there, or is there some horrible thing that would be in place
by saying guilt by association. Well, they can't be criminally
guilty by association. There has to be more than that. There
has to be some overt action.
But when it comes to abiding by the laws of immigration in
this country, it just seems to me that it's time to enforce the
laws, and if the laws are going to be there, they need to be
enforced, and if they're not going to be enforced, let's get
rid of them, let's throw the doors open and all of us stand in
2-hour lines to get in anywhere we want to go including
flights. But it seems to me that until we start enforcing the
borders, the immigration laws, that we're going to lose more
and more of our rights in this country, more and more of our
rights to avoid being subjected to searches as we get on
airplanes or go in public buildings like this one.
The more we fail and refuse to defend ourselves at our
borders, the more rights we're going to give up of the people,
and it's time to enforce the immigration laws.
And it seems to me, Mr. Forbes, that this bill would have
helped immensely those people that stood by and couldn't be
proved beyond a reasonable doubt that they aided or abetted in
murder and torture, but just were part of it. The association
alone should be sufficient to say, ``You're here illegally.
It's time to leave.'' Is that your feeling?
Mr. Forbes. Yes, sir, Mr. Gohmert. And you know, it was
stated earlier this is not a law school exam, but words do
matter. That's what we're here for. When you cite testimony
that somebody has made, it's important that you cite that
testimony accurately. When we cite cases, it's important you
cite the facts that are in the case. When you use the words
guilt by association, as we've mentioned, we're not talking
about guilt. We're talking about the immigration laws of this
country which this body has a right to determine the people
that are going to come into this country and the people that
are not going to come into this country.
We had the question posed to us by Mr. Berman, can we get
an opinion from Department of Justice? Just for the record, the
Chief Legal and Policy Advisor on Immigration Law, Border
Security and the Immigration Court System to the Attorney
General is sitting right here. He said it is constitutional.
Mr. Cole made a statement just a few minutes ago that he
said in my testimony that I said a half to two-thirds of MS-13
were here illegally. Therefore, we can go after them. That's
just not accurate, because what Mr. Cole did not tell you is
that TPS was granted in 2001 to El Salvador. A large portion of
MS-13 members are here from El Salvador. When we granted that
blanket protection, we essentially encapsulated those violent
criminal gang members who could stand out on the street today,
be here illegally, be a member of that violent criminal gang,
and because of temporary protected status, we cannot deport
them. It's nothing about guilt there. It's a policy decision
that we can make that says we think we should be able to deport
them.
Mr. Gohmert. Thank you.
And my time is about expired, but I just can't help but go
back to some of the common sense things my mamma used to say.
She was a brilliant woman, and a brain tumor took her away too
early, but it's what a lot of mothers have told their children,
and that is, be careful with whom you associate, and she did
say ``with whom'' because she was an English teacher, because
it matters. And I've had people prosecuted who did end up
offering some overt aid to a friend who committed a crime, and
come in over, probably hundreds and hundreds of times I've had
people say, ``I'm so sorry. I just got in with the wrong crowd
and got caught up in it.''
And I'm proud of the bill you're forwarding here, and
pushing forward, and appreciate the opportunity to participate.
Mr. Hostettler. I thank the gentleman.
The Chair recognizes and thanks the members of the panel
for your participation today on this very important issue.
Members are advised that they'll have 5 legislative days to
make additions to the record.
The business before the Subcommittee being complete, by
unanimous consent, we are adjourned.
[Whereupon, at 5:05 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
The subject of this hearing is, H.R. 2933, the Alien Gang Removal
Act of 2005 (AGRA), which was introduced by Congressman Forbes on June
16, 2005.
We have relied primarily on three basic strategies for dealing with
the problem of youth gangs: suppression, which has meant longer
sentences and penalties; intervention, through job training, education,
and skills development in an attempt to reform gang members; and
prevention, through school and community-based programs designed to
reach out to at-risk children before they become involved with gangs.
The Alien Gang Removal Act presents a new strategy. AGRA would
attempt to reduce the number of immigrant gang members in the United
States by changing our immigration laws.
It would establish three new exclusion grounds. The first would
make someone inadmissible to the United States for having been deported
on the basis of criminal street gang participation. Someone who has
been deported is already inadmissible, regardless of the reason for the
deportation. Under existing law, however, inadmissibility would only be
for a five-year period. Under the new provision, inadmissibility would
be permanent.
The second would make an alien excludable if the immigration
inspector has a reasonable ground to believe that the alien is a gang
member entering to engage in unlawful activity. I am concerned that
this would lead to profiling and that aliens who have tattoos or other
indicia of gang membership would be excluded on little more than their
appearance. Once excluded, they would permanently be barred from
admission to the United States.
The third would make someone inadmissible for being a member of
group or association of three or more individuals that has been
designated by the Attorney General as a criminal street gang. Another
provision in AGRA would make membership in a designated criminal street
gang a deportation ground too.
Members of designated criminal street gangs also would be
statutorily ineligible for asylum, withholding of removal, and
Temporary Protected Status; and they would be subject to the criminal
alien detention provisions.
Mai Fernandez was our witness at the April 13, 2005, hearing on
immigrant gangs. She is the Chief Operations Officer for the Latin
American Youth Center in the District of Columbia. She works with gang
members on a daily basis. She explained at the hearing that most youth
gang members in her community are not criminals. According to Ms.
Fernandez, ``Joining a gang gives a youth a group of friends to hang
out with, and a sense of security which they cannot get elsewhere in
their lives. These kids are not super-predators--they are kids looking
for a sense of belonging.''
According to Houston's Anti-Gang Office and Gang Task Force, the
gang known as ``MS-13'' has been recruiting children from local
elementary schools. It is a certainty that MS-13 will be on the
designated list of criminal street gangs if this bill is enacted. Those
children would then be subject to deportation even if they never
participate in any criminal activities.
The procedures for challenging a ``criminal street gang''
designation are much too narrowly drawn. Someone wishing to petition
the Attorney General for review of a designation would have to wait two
years before filing the petition. Immediate redress would be limited to
court action, and then only before the U.S. Circuit Court for the
District of Columbia. Also, judicial review would be based solely upon
the administrative record. The petition for court review would have to
be filed within 30 days of the date on which the designation is
published in the Federal Register.
Although I understand the desire to remove violent immigrant gang
members from the United States, this is not the way to do it. The
provisions in AGRA are not limited to violent gang members. They also
would apply to gang members who never engage in criminal activity of
any kind. AGRA would cast a broad net that would ensnare innocent
children along with the dangerous criminals.
Thank you.
Revised Prepared Statement of David Cole, Professor,
Georgetown University Law School
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