At Odds with Modernity: Senate’s Gang Affiliation Bar

Guest blogger: Curtis Boyd, third-year law student, University of San Francisco

At Odds with Modernity—The New Immigration Bill and the Proposed Gang “Affiliated” Bar to Registered Provisional Immigrant Status

While the Senate’s proposed immigration legislation—the “Border Security, Economic Opportunity, and Immigration Modernization Act”(S. 744)—may finally provide a means for undocumented individuals to apply for legal status, one of the bill’s bars to obtaining the new status will indubitably result in the unjustified exclusion of many predominantly Latino men who, although never convicted of any crime, are likely to be classified as “associated” with a criminal street gang.

Under Section 3701, subsection (c) of the bill, an individual is ineligible for the proposed “Registered Provisional Immigrant Status” if Homeland Security determines by clear and convincing evidence that the individual, “since the age of 18, knowingly and willingly participated in a such gang with knowledge that such participation promoted or furthered the illegal activity of such gang.” In other words, if the Government determines you to be associated with “gang members,” you can be barred from obtaining the new status, even though there are otherwise no other grounds for your exclusion.

Yet, the Government has a poor track record in identifying such “gang affiliates” without casting suspicion on an entire ethnicity of people—also known as racial profiling. The ACLU has filed numerous suits against law enforcement and other government agencies for “gang sweeps” that have overwhelmingly targeted Latinos and other minority groups through illegal detentions and accusations of gang-relation.This has lead to official classification of individuals as “gang members” based on irrelevant factors such as merely living in a particular neighborhood, growing up with certain individuals, or even having a graffiti-print backpack, rather than actual criminality.

While the premise of section 3701(c) seems to be to “pre-empt” the future occurrence of gang crimes by excluding individuals determined to be a part of a criminal gang, this cannot be achieved without inadvertently excluding those wrongly determined to be a part of such gangs. If the goal of the bill is to “Modernize” our immigration system, we should start by attacking underlying prejudices, misconceptions, and stereotypes that have, either implicitly or explicitly, defined immigration policy in this country since it’s founding. Providing the means to exclude those who would otherwise be eligible for the Registered Provisional status based solely on law enforcement’s estimation that an individual is affiliated with a street gang is misguided. The proposals will only continue to perpetuate the marginalization of undocumented Latinos, many of whom come from low-income neighborhoods who may not have a choice who their neighbors, colleagues, or classmates may be, yet may nevertheless be determined by passing law enforcement to be “guilty by association”.

In order to truly “Modernize” our immigration policy, undocumented individuals must be viewed as human beings and future Americans, rather than a outsiders we can group into unsavory categories without proof they have actually done wrong. Eliminating section 3701(c) would demonstrate that as an American, one is judged, and judges others, on the content of an individual’s character. In embodying this principle we would not only “modernize” our national immigration policy, but also humanize the individuals who have been willing to sacrifice so much for the opportunity to one day be called an American.

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