Oppose Grassley Amendment #43 to S. 744 Regarding Deportation for Gang Membership

Recipient: Patrick Leahy and Charles Grassley

The Honorable Patrick Leahy, Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510

The Honorable Charles Grassley, Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Chairman Leahy and Ranking Member Grassley:

On behalf of The Leadership Conference on Civil and Human Rights, we urge you to oppose Senator Grassley’s amendment #43 to S. 744. Grassley amendment #43 would create new and expansive deportation grounds for suspected gang members. It would exacerbate existing problems of misidentifying gang members, increase profiling, and result in targeting children and youth who are victims of crime and human trafficking. Moreover, it flies in the face of efforts to reform our immigration system in a way that is fair, functional, and consistent with American values.

Grassley amendment # 43 would subject people who have never committed a crime to deportation. It would create a new definition of “criminal gang” that is unworkably broad and includes many minor offenses. Arguably, this definition could include school groups like sororities and fraternities, or groups engaged in protest activities. Moreover, it shifts the burden to the individual to prove that they could not reasonably have known they were in such a gang that committed qualifying offenses. Proving such a negative is often impossible. The amendment would also sweep in individuals who have never been convicted of a crime and are merely suspected of being in a gang. This kind of dragnet approach targets the wrong people and risks deporting, and separating from their families, individuals who are not gang members.

Creating a new deportation ground for suspected gang members would likely result in reliance on flawed gang databases to determine gang membership. Gang databases face mounting criticism for their use of inconsistent definitions, improper documentation procedures, and inadequate review. For example, gang databases label individuals as gang members because they reside or associate with a family member known to be in a gang or live in a neighborhood where there is a high concentration of gangs and gang members. This “guilt by association” unfairly and disproportionally affects youth of color, many of whom live in inner-city neighborhoods or low-income communities, increasing the use of racial profiling and undermining community-based policing efforts. Gang databases also have no mechanisms for validation and are not reliably purged for accuracy. As a result, they include people who belong to groups that are not in fact gangs, people who left a gang years ago and are rehabilitated, and people who have never been a member of any gang. This would invariably result in erroneous deportations.

In addition, creating a new ground of deportability for suspected gang members is unnecessary because the government already has enough tools and resources to deport such individuals. Most states and the federal government already have laws that punish or enhance sentences for individuals suspected of being gang members, recruiting gang members, or committing crimes while in a gang. In addition, immigration laws already provide the government with broad ability to deport people engaged in criminal activity. The Department of Homeland Security already uses its full discretionary power and prioritizes the use of its resources to target suspected gang members for deportation. Enacting additional laws to address gangs and gang activity would be duplicative, unnecessary, and a waste of scarce resources.

Grassley amendment #43 would also increase the unwarranted targeting of children and youth. One particular subgroup of juveniles – unaccompanied minors – runs a greater risk of being wrongfully misidentified and deported under this proposal. Some of these children flee their home countries to escape gang violence, forced drug trafficking, and sexual violence. These unaccompanied minors run the risk of falling prey to gangs and sex traffickers, and being coerced into participating in criminal activity. Under Grassley amendment #43, individuals who flee persecution, including unaccompanied children, would run the risk of being classified as “gang members” or “gang associates,” which can result in prolonged detention and eventual deportation to countries where they face persecution or death. Grassley amendment #43 would broaden the deportation dragnet to target the wrong people and would dramatically increase the federal prosecution of children and youth. In overhauling our immigration system, Congress must keep in mind the importance of protecting the rights of juveniles and prevent changes in the law that are duplicative and do not improve, but rather exacerbate, existing problems.

For these reasons, we urge you to oppose Grassley amendment #43. If you have any questions, please contact Rob Randhava, Senior Counsel, at (202) 466-6058 or [email protected].
Sincerely,

Wade Henderson, President and CEO

Nancy Zirkin, Executive Vice President

Notes

1 533 U.S. 678 (2001).

2 See, e.g., Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003); Rodriguez v. Robbins, __ F.3d __, 2013 WL 1607706 (9th Cir. 2013); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011); Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008); Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005).

3 Clark v. Martinez, 543 U.S. 371, 386 n.8 (2005).

4 See 8 U.S.C. § 1226A.