One of the myriad loopholes in the Senate immigration reform bill could allow illegal immigrants who are known members of criminal gangs to become legal residents.
The proposed law stipulates that prospective immigrants determined to be involved in gang-related activity are inadmissible to country, and that illegal immigrants already living here would be ineligible to receive legal status. This would not only apply to individuals who have been convicted of a gang-related offense, but also to those who “willingly participated in a criminal street gang with knowledge that such participation promoted or furthered the illegal activity of the gang.”
Such individuals (non-convict gang members) could still achieve legal status, however, if the DHS secretary grants them a waiver. All they would be required to do is “renounce” their gang affiliation. Furthermore, the bill’s wording is specific enough (e.g., “willfully participated . . . with knowledge”) so as to provide considerable wiggle room from a legal standpoint.
Chris Crane, who heads the union representing more than 7,000 Immigration and Customs Enforcement (ICE) agents, says the bill’s policy with respect to gang members is “one of the most ridiculous things I’ve ever heard.”
“The idea that we’re going to give known gang members the opportunity to renounce their gang affiliation — and believe them — and then give them legal status in our country, is outrageous,” he tells National Review Online.
ICE agents in the field routinely confront illegal immigrants who are known members of gangs, Crane says, but the Obama administration’s new immigration policies have made it all but impossible to initiate deportation proceedings against them, even if they have been arrested on criminal charges. Since June 2012, DHS policy has prohibited agents from trying to deport illegal immigrants who might qualify for the administration’s “deferred action” DREAM program — individuals who were brought here illegally as children, who are currently enrolled in school or are a member of the military, and who have not been convicted of a serious crime.
Crane says the new policy is routinely abused. If an illegal immigrant claims deferred-action status — even if they are a known gang member or have just been arrested on criminal charges — ICE agents are not allowed to initiate deportation proceedings against these immigrants; agents must “take them at their word,” and release them without charge. “We’re forced to let these guys walk,” he says. “We’re restricted from enforcing the law.”
A group of ICE agents is currently suing the administration over its deferred-action policy. One of the plaintiffs was injured after being assaulted by an illegal immigrant who had been arrested on a domestic-violence charge in July 2012. When the agent tried to initiate deportation proceedings, ICE superiors ordered him to release the immigrant without charge, a decision that was “based on the President’s new immigration policies,” according to court documents. A federal judge in Texas has indicated that he is likely to rule in the plaintiff’s favor.
The Senate bill’s waiver clause for gang members could potentially be exacerbated by another loophole concerning immigrants who fraudulently claim benefits under the proposed law. The DHS secretary has the power to waive restrictions against immigrant applicants who have sought benefits “by fraud, or willfully misrepresenting a material fact,” such as the renunciation of gang membership, if the secretary determines that doing so would prevent “extreme hardship” to the immigrant or a member of the immigrant’s immediate family (who is a lawful resident). The bill further states that “no court shall have jurisdiction to review a decision or action” regarding the granting of these waivers.
The Senate Judiciary Committee will consider amendments to the immigration reform bill during a mark-up hearing on Thursday.