At first glance, the Gang of Eight’s amnesty bill appears to crack down on members of criminal street gangs. In fact, the bill adds aliens who are members of “criminal street gangs” to the list of those who are inadmissible and deportable under current law, and even contains a provision that explicitly excludes convicted gang members from gaining amnesty under the bill. (see Sec. 3701, p. 604-608)

However, upon more careful examination of the gang provisions in the bill, it becomes apparent they are nothing more than a mere attempt to appear tough. Rather, the provisions are so narrow that they will fail to keep out the vast majority of illegal aliens belonging to a gang, even allowing the Secretary of Homeland Security to waive the newly-created gang membership grounds for ineligibility.

Specifically, the bill bars gang members from receiving amnesty (“registered provisional immigrant” (RPI) status) under two different sets of circumstances. The first pertains to aliens who are 18 and older who:

  • Have been convicted of a gang-related offense under 18 U.S.C. 521(a);
  • Have knowledge the gang’s members engaged in a series of offenses under 18 U.S.C. 521(c); and
  • Acted with the intention to promote or further the felonious activities of the gang or maintain or increase his or her position in the gang. (p. 607)

Delving deeper, it becomes apparent that the vast majority of illegal alien gang members will not be prohibited from obtaining amnesty under this provision. First, the provision limits gang activity to that which is committed after the alien turned 18, giving illegal aliens a free pass on any gang offenses committed under the age of majority. Next, the provision only excludes alien gang members with convictions, allowing those who have been charged or arrested, but never actually convicted, of gang activity the ability to apply. Third, the definition of offenses under Title 18 only includes felonies, leaving those who have been convicted of any misdemeanor offenses as a gang member (even those who were pled down from a felony) to apply for amnesty. Finally, the provision includes an intent requirement, allowing illegal aliens a loophole to argue they unknowingly or unwillingly participated in the gang activity, and thus should be eligible for amnesty.

As such, the above criteria is so narrow that it will only prevent a fraction of illegal alien gang members from being excluded from receiving RPI status. Unfortunately, the second set of circumstances laid out under the bill for finding illegal alien gang members ineligible for amnesty is no better. The second category is aimed at those who may not have felony convictions related to their gang membership, but for whom the Secretary of DHS is given special knowledge as to their gang activity. Specifically, the second group of aliens includes those whom:

The DHS Secretary determines by clear and convincing evidence, based on law enforcement information, that since the alien turned 18 years of age he or she has knowingly and willingly participated in a gang with the knowledge that such participation promoted or furthered the gang’s illegal activity. (p. 607-608)

As with the first group, there are several reasons as to why this provision also won’t catch the majority of illegal alien gang members. Again, the provision excludes any gang related-offenses or activity committed by the illegal alien before the age of majority, only taking into consideration gang affiliation after the age of eighteen despite the fact the majority of gang members become involved as minors. Next, the DHS Secretary must determine by “clear and convincing” evidence based on law enforcement information that the alien is a gang member. A step below the highest level of proof in the judicial system, requiring clear and convincing evidence raises the burden law enforcement officers must show DHS to protect the public from illegal alien gang members. Finally, the provision includes yet another intent requirement, again allowing illegal aliens a loophole to argue their way into an amnesty.

Perhaps most troubling is that even if the DHS Secretary were to find an illegal alien to be a member of a criminal street gang, the Gang of Eight grants the Secretary the ability to waive the gang member grounds for ineligibility. The waiver provision provides that so long as the alien renounces their gang association and are otherwise not a security threat, the DHS Secretary can waive that ground of ineligibility. (p. 608) Certainly illegal aliens, including members of the most nefarious drug cartels, will be all too happy to claim they’ve renounced their gang membership in order to gain legal entry to the United States to continue to engage in their criminal behavior.

The gang membership waiver of course is just one of hundreds of waivers granted to the DHS Secretary under the Gang of Eight amnesty bill to ensure no illegal alien is left behind, even those who have come to our country to do us nothing but harm.