Last week the House passed a bill to expand the government’s ability to deport immigrants on the basis of alleged gang affiliation.
Promoted by Republicans as a way to target members of gangs such as the transnational M13 gang, H.R. 3697, the “Criminal Alien Gang Member Removal Act,” amends the Immigration and Nationality Act by adding gang affiliation to the list of criminal offenses that qualify as grounds for detention and deportation.
The bill passed 233 – 175 with almost unanimous Republican support and now must gain approval in the Senate, where it is currently pending in the Committee on the Judiciary. While the bill still has yet to come to a vote in Senate, it has already gained the presidential nod of approval. Shortly following the bill’s passage, the White House Press Secretary published a statement applauding Congress’ decision, and the administration already affirmed that “If H.R. 3697 were presented to the president in its current form, his advisors would recommend that he sign the bill into law,” according to a statement of administrative policy published last Tuesday.
The bill has received strong criticism from House Democrats and organizations such as the National Immigrant Justice Center (NIJC) and the American Civil Liberties Union (ACLU), who claim the bill provides the government with sweeping discretion to detain and deport immigrants using a broad and arbitrary label.
The bulk of the debate on the bill revolves around how it defines ‘gangs.’ The bill defines a gang as any group of five or more people that has as one of its primary purposes the commission of one or more specified criminal offenses. The bill goes on to expand on these ‘criminal offenses’ to include felony drug offenses, which would include the possession of marijuana. It also explicitly names the ‘harboring’ of undocumented immigrants as a crime.
This means, theoretically, that any organization that helps, shelters, or hires undocumented immigrants could be considered a gang, and thus any immigrant member of such group could theoretically be detained or deported as a gang member.
The National Immigrant Justice Center’s recent policy report explains:
“For example, the government could attempt to designate a church group that elects to offer shelter to an undocumented immigrant as a gang. Similarly, a fraternity whose members use expired identification documents to purchase liquor or engage in initiation rites or a Fortune 500 company that employs workers who may or may not have irregular documents could also fall under this definition.”
The government already has a history of liberally applying the ‘gang’ label. Just ask the Juggalos, a fan group of the Insane Clown Posse. They took to the streets Saturday to protest the FBI’s designation of their group as a gang in the bureau’s National Gang Threat Assessment report back in 2011. The fans and the band have been fighting to clear their name ever since. The issue even ended up in court last year when the Clown Posse sued the FBI for withholding documentation about the gang classification of their fans.
In a revealing profile about the group, Vox writer Dylan Matthews explained that the parallel would be to criminalize someone for being a “Belieber”(Justin Bieber fan) or a “Swiftie” (Taylor Swift fan). While perhaps ridiculous in theory, the classification has had serious consequences for group members, causing some fans to lose their jobs and, in some cases, their parental rights because of their affiliation with the so-called ‘gang.’
In the case of H.R. 3697, the consequences of alleged gang affiliation would be much more dire — as in no-bond mandatory detention.
“Mandatory detention refers to a provision of the INA that states that non-citizens with certain criminal convictions must be detained by ICE. People who are subject to mandatory detention are not entitled to a bond hearing and must remain in detention while removal proceedings are pending against them,” explains a policy handout by the Immigrant Law Research Center.
H.R. 3697 would expand the terms of mandatory detention, which the ACLU considers a clear violation of the Fifth Amendment’s Due Process Clause. It also transfers the discretion of determining bond eligibility from the Attorney General to the Secretary of Homeland Security.
“[The bill] grants the Department of Homeland Security massive discretion to designate a group of people as a ‘criminal gang,’ based on secret evidence, and without meaningful judicial review,” the ACLU writes in their vote recommendation and analysis of the bill.
While the practice may appear unconstitutional, it wouldn’t be the first time the government has sanctioned detention without trial. During the War on Terror era, the government adopted the practice of ‘indefinite detention’ whereby suspected terrorists can be held without charge or trial. Despite facing challenges in Congress and in the courts, indefinite detention was signed into law as a provision of the 2012 National Defense Authorization Act, where it remains in legal standing today.
In the same way the War on Terror became a catch-all justification for constitutionally questionable policies, it seems that the vaguely defined threat of immigration and ‘criminal aliens’ will be this administration’s keyword for getting around civil liberties.