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Senate Immigration Amendment's Gang Provisions Enforce Guilt by Association and Not Conviction

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This week the Senate will choose to either perpetuate the harsh and ineffective policies of current immigration law, or take important steps forward to ensure that the millions of undocumented individuals and green card holders have a fair chance to get on the pathway to citizenship. As it stands today, the bill and proposed amendments fall short of ensuring a fair and inclusive path forward. The current bill imposes extreme limitations, which will result in keeping thousands, if not millions from coming out of the shadows.

The bill continues to criminalize immigrants by targeting specific groups for deportation; one such group includes alleged members of a gang. Targeting gang members sounds like a sensible enforcement focus, but the Senate bill's provisions are crafted so broadly that they target even those who have never been gang members, have never been convicted of a crime, or left gangs years ago and have long since rehabilitated. Moreover, an amendment to the current reform bill, introduced by Sen. Grassley, makes this harsh provision far worse by making it very easy to be labeled a gang member. The amendment also makes it much harder for the applicant to introduce evidence that would prove they aren't in a gang. The consequences of this discriminatory provision will be a permanent bar from ever obtaining legal status, and mandatory deportation for those have been living legally in the United States for decades.

The provision also imposes guilt by association and collective punishment by targeting people not for their own individual culpable conduct, but for their associations with groups considered to be dangerous; this includes anyone who happens to live with or spends time with a family member known to be in a gang, or anyone who lives in a neighborhood where there is a high concentration of gangs. Under these provisions, youth of color will be unfairly and disproportionately impacted by this amendment because of how they look or dress, and where they live. This kind of dragnet approach targets the wrong people and risks permanently exiling and separating individuals from their families--individuals who are not even gang members.

Take the case of Julia in California. Julia is a DREAMer who has never been involved with a gang and is eligible to temporarily remain in the United States under the Deferred Action for Childhood Arrivals (DACA) program. Julia, like many immigrants of color, lives in a low-income community and, because of the high concentration of gangs in her neighborhood, knows several individuals involved with a gang. While in high school, she was forbidden from wearing the color red. Under the proposed Grassley amendment, Julia would be at significant risk of being labeled a gang member and subject to mandatory deportation because it is likely that she is in the California gang database, or "Cal-Gang" since she has been seen affiliating with documented gang members and frequenting gang areas.

The amendment's proposed definition of "criminal gang" is so overbroad that it could cover organizations that are not traditionally conceived as gangs, such as groups like the Occupy Movement, that are engaged in civil disobedience and protests, and even sororities and fraternities engaged in hazing activities.

It's important to remember alleged gang members who commit crimes, or in some cases merely suspected of committing crimes, already face a slew of barriers under our strict immigration laws. Sen. Grassley's amendment is therefore unnecessarily punitive and duplicative.

At a time when we are working to create an immigration bill that is sensible and consistent with American values, and when the stakes could not be higher for individuals who risk losing the opportunity to stay in this country with their families, we must ensure that new laws do not unfairly target and punish the wrong people and further exacerbate existing problems in the law.

The Immigrant Legal Resource Center is a member of the Immigrant Justice Network (IJN) with the National Immigration Project of the National Lawyer's Guild and the Immigrant Defense Project. IJN sits on the Steering Committee of the CAMBIO campaign.