The White House response to my posting about gang members getting amnesty was really to the Kris Kobach article I linked to. So I thought Kris ought to have a chance to respond:

Having had my argument described as “absolutely and egregiously wrong” by Mr. Smith (rather strong words), I feel compelled to offer a brief response. First, let’s make one thing clear. It is undeniable that the bill allows gang members to receive the Z visa amnesty. Section 602(g)(2) clearly states that a gang member may note his gang membership and attach a “renunciation of gang affiliation” to his Z visa application. Mr. Smith responds to this rather embarrassing fact in two ways. First he protests that gang members will not get the amnesty because those who are convicted of certain crimes are not eligible. It is certainly true that those who are convicted of certain crimes are not eligible. But what he fails to comprehend is that thousands of alien gang members in the United States have not yet been convicted of any crime. That is one of the main reasons why ICE has invested nearly two years of effort in Operation Community Shield–which seeks to deport the thousands of gang members who cannot be convicted. The statistics tell the story. In FY 2006, a total of 2,294 gang members were arrested by ICE. Less than half had criminal convictions on their record; the majority did not. All were placed into removal proceedings. If this bill passes, the latter group (without criminal convictions) will be eligible for the amnesty. In any sane world, their gang membership alone would be sufficient to deny them the amnesty. But not in this bill. Mr. Smith then offers a second response, which is equally unavailing. He states that the bill prohibits the issuance of nonimmigrant visas to aliens seeking to enter the United States who pose a national security threat or are gang members. That is true. But it is also largely irrelevant. Members of MS-13 and other narco-trafficking gangs do not usually enter the United States legally after applying for a visa. Rather, they enter illegally by sneaking across the southern border. Indeed, it is those gangs that CONTROL the smuggling routes along the southern border. MS-13 members have never made it their practice to enter after patiently wait for a visa at a US consulate abroad. If Mr. Smith thinks that they will start doing so after the passage of this legislation, then I have a bridge that I’d like to sell him. Kris Kobach Professor of Law, University of Missouri (Kansas City)Former Counsel to U.S. Attorney General John Ashcroft