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.