Anti-Immigrant Bill Exacerbates DACA Tension on Capitol Hill

Rep. Zoe Lofgren (D-CA) charged that the bill gives broad powers to DHS to target immigrants, whether they're undocumented or have legal status, based on the mere belief of gang involvement.

The letter says that "writing Black women’s words off as divisive, and chastising them for raising the alarm on unjust behavior, is not merely condescending—it echoes racist tropes that have been used for centuries to dehumanize Black people and support the structures that maintain discrimination." Drew Angerer/Getty Images

A handful of virulent immigration foes in the U.S. House of Representatives claimed the bill they railroaded through on Thursday morning would combat what they’ve described as an epidemic of gang violence at the hands of immigrants, undocumented or otherwise.

Congressional Democrats, civil rights advocates, and faith-based organizations say that they’re wrong—and that Republicans should redirect their efforts to protecting the 800,000 young undocumented immigrants in peril since the Trump administration ended Deferred Action for Childhood Arrivals (DACA) one week ago.

“The title of the bill is the ‘Criminal Alien Gang Member Removal Act,’ and as we’ve seen in the past, there’s times when the name of the bill is not always reflected in the actual proposed language of the statute,” Rep. Zoe Lofgren (D-CA), who voted against the bill, told her colleagues in the lead-up to the nearly party-line 233-175 vote on HR 3697.

“That’s true in this case.”

Vanita Gupta, the Obama-era U.S. Department of Justice civil rights chief, outlined her concerns with the bill prior to the vote in a Leadership Conference on Civil and Human Rights letter to members of Congress:

It would subject people who have never committed a crime to deportation, creating a new definition of “criminal gang” that is unworkably vague and could cover a wide range of organizations ranging from churches to fraternities to political groups. It shifts the burden to individuals to prove they did not know they were affiliated with a gang that committed qualifying offenses, even though proving such a negative is often impossible.

It would expand the use of mandatory, no-bond detention to people facing removal under the bill, even if they have not been convicted of any criminal offenses.

Deportations based on suspected gang membership or affiliation would likely rely on flawed gang databases, which are rife with inconsistent definitions, improper documentation procedures, and inadequate safeguards.

Creating a new ground of deportability for suspected gang members is also unnecessary, because the government already has enough tools and resources to deport such individuals. Most states and the federal government also 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, DHS [the U.S. Department of Homeland Security] has long prioritized its resources to target suspected gang members for deportation.

H.R. 3697 will disproportionately harm younger immigrants – particularly unaccompanied minors, some of whom flee their home countries to escape gang violence, forced drug trafficking, and sexual violence, and who are at high risk of being coerced to participate in criminal activity. It will also indiscriminately bar these immigrants from asylum, withholding of removal, or other forms of humanitarian relief.

More than 350 organizations signed onto a separate letter of opposition. The Mexican American Legal Defense and Educational Fund’s Thomas A. Saenz characterized it as “keeping with the very worst traditions of nativist lawmaking, falling in line with immigrant stereotyping in congressional enactments of a century ago.”

Nativist lawmaking is at a high point in the House with pending bills pushed by anti-immigrant hate groups.

Democrats Who Voted for HR 3697
Eleven Democrats voted for the so-called Criminal Alien Gang Member Removal Act. One Republican, Rep. Justin Amash (R-MI), voted against it. Those Democrats are:
Rep. Salud Carbajal (CA)
Rep. Henry Cuellar (TX)
Rep. Josh Gottheimer (NJ)
Rep. Ruben Kihuen (NV)
Rep. Dan Lipinski (IL)
Rep. Patrick Murphy (FL)
Rep. Tom O’Halleran (AZ)
Rep. Collin Peterson (MN)
Rep. Jacky Rosen (NV)
Rep. Raul Ruiz (CA)
Rep. Kyrsten Sinema (AZ)

Lofgren charged that the bill up for a vote on Thursday gives broad powers to DHS to target immigrants, whether they’re undocumented or have legal status, based on the mere belief of gang involvement. Section 2 of the bill confirms Lofgren’s assessment, conferring the same authority to the attorney general—in this case, Jeff Sessions, a staunch civil rights opponent who announced the end of DACA with a smirk.

Bills in the vein of the so-called Criminal Alien Gang Member Removal Act and other recent House-passed measures that target undocumented immigrants, such as the GOP’s No Sanctuary for Criminals Act and Kate’s Law, could embolden Republicans in DACA negotiations to continue their hardline approach.

House Minority Leader Nancy Pelosi (D-CA) met on DACA Wednesday afternoon, as she had requested, with House Speaker Paul Ryan (R-WI) and members of the Congressional Tri-Caucus—the Congressional Hispanic Caucus, the Congressional Black Caucus, and the Congressional Asian Pacific American Caucus. By the evening, Pelosi and U.S. Senate Minority Leader Chuck Schumer (D-NY) crossed Pennsylvania Avenue to dine with President Trump at the White House and announced they had “agreed to enshrine the protections of DACA into law quickly, and to work out a package of border security, excluding the wall, that’s acceptable to both sides.”

Initial social media dispatches from the Associated Press and others overstated the outcome, and the White House pushed back almost immediately on Twitter.

By the morning, Pelosi and Schumer had issued another joint statement conceding that the White House’s take, and Trump’s subsequent tweets, were “not inconsistent with the agreement reached last night.”

After the 2016 election, immigrant rights advocates anticipated bills like the Criminal Alien Gang Member Removal Act coming down the pike, and they scrambled to block federal access to state gang databases, fearing Trump would rely on these databases—no matter how faulty they’ve proven to be—to deport immigrants often erroneously labeled as gang members.

The immigration system and criminal justice systems are already so deeply entwined that there’s a name for what happens to immigrants who get funneled into deportation proceedings through the criminal justice system: “crimmigation.” The Homeland Security Investigations (HSI)’s National Gang Unit, for example, forges partnerships between Immigration and Customs Enforcement (ICE) and local law enforcement. Through this arm of ICE, local and state law enforcement agencies work with HSI to locate and, in many cases, deport suspected undocumented gang members.

Immigrant rights advocates are concerned that local law enforcement can and do enter individuals into their state’s gang database for subjective reasons, based on tattoos, styles of dress, and whether they were in a known gang area—all of which equates to profiling youth of color who live in heavily policed areas, as Rewire reported in January. For example, to be entered into the database in California, a person must only meet two out of ten criteria, putting people who are not “criminals” or gang members in threat of deportation.

In California, an audit of the “CalGang” database revealed rampant flaws, including the inclusion of 42 toddlers entered into the system before the age of 1 and information that constituted a violation of privacy rights. The auditors found instances in which local law enforcement put people in the database “without adequate evidence, failed to purge CalGang records that had not been updated within five years, and poorly implemented a state law requiring that juveniles and their parents are notified before the minor is placed in the database,” the Voice of OC reported.

And there’s nothing to stop ICE from using so-called gang ties to round up DACA recipients, as in the case of Daniel Ramirez Medina in Washingtonwhose protected status was canceled because of ICE’s claim of gang activity. DACA recipients can also have their status cancelled because of criminal convictions.

While bills like HR 3697 might be attributed to the emboldening of Republicans under the anti-immigrant Trump administration, ICE and other federal immigration agencies have a long history of using “the gang member defense,” as Viridiana Martinez told Rewire in February. Martinez is the co-founder of Alerta Migratoria, a grassroots immigrant rights organization based in North Carolina.

“ICE has always used the gang member defense. I’ve heard that many, many times in cases I’ve worked,” Martinez said. “Whenever you get arrested and processed, they check you for tattoos. Depending on what tattoos you have, automatically they’ll categorize you as a gang member.”

The organizer told Rewire that while working on cases under the Obama administration, she would question ICE about why people remained detained that, according to the law at the time, shouldn’t have been. Martinez asserted that she was regularly told people were being detained for gang affiliation, apparently based on their tattoos.

“As we said last night, there was no final deal, but there was agreement on the following: We agreed that the President would support enshrining DACA protections into law, and encourage the House and Senate to act.”

Republicans were furious with the president, according to Politico‘s Jake Sherman; the news outlet reported that they “feel betrayed” by Trump’s supposed deal making with Democrats. Under their leadership, the House continues to act on bills that would criminalize undocumented immigrants while pushing out those who have legal status. Ryan, the speaker who will help guide the GOP in DACA negotiations, praised the House’s plan “to combat brutal gang violence,” as did the White House in a glowing statement of administration policy.

HR 3697’s expanded definition of “criminal gang” under federal immigration law would include any five people who happen to gather and commit a wide range of offenses, from marijuana possession—legal in Lofgren’s home state—to providing sanctuary for undocumented immigrants, as religious institutions have historically done and continue to do under the Trump administration.

“These offenses could sweep in many people that no reasonable person would think of as a gang member,” Lofgren said.

The bill indeed wouldn’t help combat bona fide gang violence, according to Rep. Val Demings (D), a former police chief with 27 years of law enforcement experience, including co-chairing an anti-gang task force for her home state of Florida. The first-year lawmaker and Black woman is one of the many women of color who notched historic wins on Election Day 2016.

“Do I take gang activity very seriously? You better believe I do, and I have the record to prove that,” Demings said on the House floor. “But the spirit, the spirit of HR 3697, with this broad new definition of what constitutes a gang, has nothing—based on my experience on the ground—has nothing to do with curtailing gang activity.”

Demings declared there was “no way” she could vote for a measure that “targets a group of people based on their status and does not target criminal activity.”

“That’s what law enforcement officers do,” she said.

Republicans on the House floor spoke past Demings, Lofgren, and other Democrats who outlined the bill’s faults. GOP Reps. Barbara Comstock (VA) Raúl Labrador (ID), Peter King (NY), and Bob Goodlatte (VA), the chair of the House Judiciary Committee known for rubber-stamping aggressive immigration bills, all pivoted to lurid depictions of gang activity, including that of MS-13.

What GOP lawmakers didn’t say is that MS-13 began in Los Angeles and became a transnational street gang because of failed U.S. policy in Central America. The Trump administration similarly omits that fact in advancing anti-immigration policies.

Goodlatte, for his part, indicated that even immigrants with legal status could find their days in the country numbered.

“Transnational criminal gangs have declared war on the United States. Their tactics of intimidation and unspeakable mutilation and killing have permeated most every part of our country, including multiple instances in my own district,” Goodlatte said on the floor. “Whether these criminals came to this country illegally, as unaccompanied minors, adults, or have valid visas, or even green cards, it is time to send the message that this behavior will simply not be tolerated.”

Rep. Don Beyer (D-VA), whose Northern Virginia district adjoins Comstock’s, tried, and failed, to pass a motion to recommit: a last-ditch effort to debate and amend a bill. In this case, Beyer sought to add a section “protecting innocent religious workers from deportation.”

“The sponsor of this bill, Ms. Comstock, and I both represent Northern Virginia. And she and I both want to eliminate gang violence,” Beyer said. “MS-13 is a menace to society, and I endorse the goal of destroying it through legal means.”

“But this bill wouldn’t do that. This bill will promote widespread racial profiling, it’ll violate First Amendment protections, it will expand mandatory detention of immigrants, it will raise serious constitutional questions on judicial review of government designation of certain groups, and it bars humanitarian relief for individuals, in violation of international treaties.”