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H.R. 3697 (115th): Criminal Alien Gang Member Removal Act

Should the government be able to deport or detain immigrants who are suspected of gang membership, even if they haven’t been convicted of — or even arrested for — a crime?

A bill that passed the House last week would allow the government to do just that.

What the bill does

The Criminal Alien Gang Member Removal Act (H.R. 3697) would prevent non-Americans suspected of gang activity from coming to the U.S. It would also allow for the deportation or detainment of immigrants already here who are suspected of gang involvement.

Last fiscal year, Immigration and Customs Enforcement (ICE) removed more than 2,000 suspected gang members from the country, but only after they were convicted of another crime. This legislation would allow for their potential removal prior to that.

What supporters say

Supporters argue the bill is a necessary public safety measure in response to the rise of gangs comprised largely of immigrants. Supporters in particular often reference a primarily-immigrant gang called MS-13, which traces its origins back to the 1980s but has become more prevalent in the U.S. recently, to the point that President Trump mentioned his plans to “eradicate” them in a summer speech.

“In Northern Virginia there have been at least eight brutal murders tied to the transnational MS-13 gang since last November,” House lead sponsor Comstock said in a press release. “That is unacceptable, and this legislation will help get these violent gang members off our streets. MS-13 preys upon and intimidates those who have come to our country to seek a better life.”

That number Comstock cites of eight murders in her home region of northern Virginia appears to be accurate — if not actually an understatement, since the statistic was from May. The numbers are even worse in some other regions, such as at least 17 murders committed by the gang in Long Island.

What opponents say

Opponents argue the bill, by allowing the deportation of people not even accused of a crime, violates the “innocent until proven guilty” axiom of the American legal system and violates the right to association (in this case association with gangs) provided in the First Amendment.

The bill “will promote widespread racial profiling, violate First Amendment protections, expand mandatory detention of immigrants, raise serious constitutional questions on judicial review of government designations of certain groups, and bar humanitarian relief for individuals in violation of international treaties,” the American Civil Liberties Union said in a statement

While nobody on either side of the aisle disputes that immigrants who become convicted murderers should get deported, mere association with gangs — or even hearsay suspicion of gang involvement — is a different story.

“H.R. 3697 seeks to deport immigrants based on a mere “reason to believe” that they have been involved in gang activities. This overly broad designation could sweep up individuals who have not engaged in criminal activity,” the ACLU continued in their statement. “Indeed, in many cases, H.R. 3697 could make immigrants deportable for activities protected by the First Amendment.”

Votes and odds of passage

After attracting six Republican cosponsors, It passed the House on September 14 by a vote of 233–175, a mere week after the bill was introduced.

Only 11 Democrats voted in favor, five of whom represent states that border Mexico. Only one Republican voted against: libertarian-leaning Rep. Justin Amash (R-MI3).

The bill now goes to the Senate Judiciary Committee. Skopos Labs rates it as a 32 percent chance of enactment. President Trump has indicated he would sign the bill if it passes the Senate.

“This bill provides law enforcement with the tools they need to improve domestic security and restore public safety by denying criminal alien gang members admission to the United States,” the White House said in a statement. “President Trump has always made the safety of Americans his highest priority, and encourages the Senate to take quick action and pass this bill.”

Last updated Sep 25, 2017. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Sep 14, 2017.

Criminal Alien Gang Member Removal Act

(Sec. 2) This bill amends the Immigration and Nationality Act to make an alien: (1) inadmissible if a consular officer, the Department of Homeland Security (DHS), or the Department of Justice (DOJ) knows or has reason to believe that such person is or has been a member of a criminal gang or has participated in criminal gang activities; and (2) deportable if such person is or has been a member of a criminal gang, or has participated in criminal gang activities knowing that such activities will promote illegal activity.

A "criminal gang" is defined as an ongoing group, club, organization, or association of five or more persons: (1) one of the primary purposes of which is the commission of specified criminal offenses and the members of which engage, or have engaged within the past five years, in a continuing series of such offenses; or (2) that has been designated as a criminal gang by DHS. Such offenses include: (1) felony drug offenses, (2) bringing in and harboring certain aliens, (3) assisting certain aliens to enter the United States, (4) importing aliens for immoral purposes, (5) crimes of violence, (6) obstruction of justice or witness tampering, (7) identification document fraud, (8) slavery and trafficking in persons, (9) money laundering, and (10) interstate or foreign travel in connection with a racketeering enterprise.

DHS: (1) may designate a group of five or more persons as a criminal gang based upon its conduct, and (2) shall publish a designation in the Federal Register seven days after providing congressional notification as provided for in this bill. A designation shall be effective until: (1) it is revoked or blocked by Congress; (2) DHS determines that the group no longer fits such designation or that national security or law enforcement interests warrant a revocation; or (3) it is judicially set aside. A group may file a petition for revocation with DHS. The bill prescribes DHS review provisions. A revocation of a designation shall not affect any proceeding based on conduct committed prior to the effective date of the revocation.

Within 30 days after publication of a designation, an amended designation, or a determination in response to a petition for revocation, a designated group may seek judicial review with the U.S. Court of Appeals, DC Circuit.

The bill: (1) provides for mandatory detention of alien gang members; and (2) makes alien gang members ineligible for asylum, temporary protected status, special immigrant juvenile status, and parole (unless such an alien is assisting the United States in a law enforcement matter).