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If enacted, the Gang Deterrence and Community
Protection Act (HR 1279), which the U.S. House of Representatives passed
on May 11, 2005, would have a harmful impact on many youth who are
suspected of belonging to a gang, but it would have an especially
detrimental impact on immigrants. While gang crime is a very serious
issue, the supporters of HR 1279 are using the issue of gang violence to
further erode the due process rights of immigrants.
In general, this bill would increase penalties
for gang activity, such as making capital punishment available for a
wide range of gang-related crimes and establishing new mandatory minimum
sentences. The bill would expand the definition of a "crime of
violence" and authorize the attorney general to prosecute as an adult
any juvenile who committed this type of crime after his or her sixteenth
birthday. Under the expanded definition, a crime of violence would
include any offense that is punishable by more than one year of prison
and that involves a substantial risk that physical injury to another
person or to a person's property may result. Under this definition,
many acts that do not lead to any physical injury can be interpreted by
a judge as a crime of violence.
If the definition of "crime of violence" were
expanded in this way, the definition of "aggravated felony" in
immigration law would also be automatically expanded. Immigrants
convicted of aggravated felonies face harsh penalties, including
detention without bond as well as removal from the U.S. In most such
cases removal is a foregone conclusion, and immigration judges have no
discretion to consider the hardship that would result. The definition
of "aggravated felony" is already broad and can include relatively minor
offenses, such as shoplifting. The House also approved an amendment to
HR 1279 offered by Rep. Bob Goodlatte (R-VA) that would add five years
to violent crime and drug trafficking sentences when the violator is an
undocumented immigrant and fifteen years to sentences of violators who
have previously been deported for a criminal offense. Because of this
provision, individuals who commit the same crime would face different
punishments based on their immigration status.
Another amendment that passed would direct the
Dept. of Homeland Security to provide information on all non-U.S.
citizens who have final orders of removal, who have signed a voluntary
departure agreement, or who have overstayed their visa to the National
Crime Information Center (NCIC) database. As a result, even information
regarding noncitizens who have obtained lawful status or have already
left the U.S., but who fit one of the new qualifications, would be added
to the database. Information regarding noncitizens who have never even
received their final order of removal would also be included. In
addition, this provision would expand dramatically the number of
noncriminal offences that are included in a database that is meant for
criminal justice information. Because state and local police routinely
check the NCIC regarding individuals whom they stop for suspected
traffic violations or other infractions, the inclusion of this data in
the NCIC database has the de facto effect of enlisting these officers in
immigration enforcement.
In 2001, information regarding individuals who
had committed one of two types of immigration violation started to be
added to the NCIC database. One type of violator whose information was
added to the database was an "absconder," or a person who had received
an administrative order of removal and unlawfully remained in the U.S.
The other individuals about whom information was added were those who
violated the requirements of the National Security Entry Exit
Registration System (NSEERS), a program that required registration of
individuals who fit a national security risk profile. The entry of this
information into the NCIC database exacerbated the potential for racial
profiling by local police all over the country, who regularly use the
NCIC database, since individuals forced to register under the NSEERS
were predominately Arab and Muslim men. This new practice also marked
the first time information regarding civil violations was entered into
the NCIC database, an act that was not authorized by Congress (as its
name implies, the NCIC historically has been a repository of information
about violators of criminal law). By authorizing the addition of new
types of immigration-related information into the NCIC database, HR 1279
could have damaging consequences on many immigrants, including those who
have violated neither criminal nor immigration statutes. For example,
information regarding a person who is issued a final order of removal
and complies with the order would still be entered into the database.
If that person were granted entry into the U.S. at some future time, his
or her information might not be updated in the database, and the person
would be at risk of an unlawful arrest by police if, upon stopping the
person for a traffic violation, for example, an officer fed the person's
name into the database and received back outdated information.
Sen. Diane Feinstein (D-CA) has introduced
S. 155, the Gang Prevention and Effective Deterrence Act, in the
Senate. Her bill does not contain the same troubling immigration
provisions as the House bill does, but if her bill passes, those
provisions could become part of the conference report (the final version
of a bill that emerges after the Senate and House versions have been
reconciled by a conference committee consisting of members of each
house). In addition, HR 2933, the Alien Gang Removal Act, has been
introduced in the House by Rep. Randy Forbes (R-VA). This bill would
make an immigrant removable and ineligible for admission into the U.S.
if he or she has previously been deported for criminal gang activity or
if a consular officer or the secretary of Homeland Security merely has
reasonable grounds to believe that he or she is a member of a gang.
The Gang
Deterrence and Community Protection Act does not offer a fair or
adequate solution to the problems of gang violence. In addition to
unfairly targeting immigrants, the bill does nothing to address the
underlying causes of gang participation among young people. The strict
deportation penalties make no exceptions for long-time residents, family
ties, or rehabilitation. Nor should Congress include immigration
violations in a database meant for criminal violations under the guise
of promoting community safety.
—By
Jennifer Hojaiban, NILC
research associate
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