Gang Members among Surge of Illegal Aliens Entering and Remaining in the United States

Views From The Bench

December 18, 2015

It is clear from published media reports relating to the recent surge of illegal alien minors from Central America that among them are Mara Salvatrucha (MS-13) gang elements and others with criminal histories and affiliations. It is also well known that Border Patrol agents are knowingly letting these gang members enter the country as they have been told by their supervisors to treat suspected gang members as any other child entering the country.

Art Del Cueto, president of the National Border Patrol Council in Tucson Arizona, has been quoted as saying that officers who recognize gang tattoos on minors are supposed to treat them like everyone else. Border Patrol agents have been directed not to talk to reporters and that if they spoke to the media without advanced permission, they could be subject to criminal or administrative disciplinary action.

The Border Patrol apprehends and processes all illegal aliens, including unaccompanied minors (UAC), to determine whether they are admissible, whether they can be immediately returned to their country of origin, or placed in removal proceedings. Many minors are transported to parents or family members already in the United States, some of whom are also illegal aliens. If an unaccompanied minor is inadmissible, cannot be immediately returned, and there is no parent or legal guardian in the United States available to provide care and physical custody, current statutes require that they are transferred to the Department of Health and Human Services (HHS) which must provide for the custody and care of the unaccompanied child at taxpayer expense. In FY 2013, there were 24,668 UAC transfers from the Department of Homeland Security (DHS). The Congressional Research Service in a report entitled “Unaccompanied Alien Children: An Overview” stated that by August 31, 2014, there were 66,124 UAC apprehensions, 76% of which were from three Central American Countries: El Salvador, Guatemala, and Honduras.

Any unaccompanied child who has not been expeditiously returned to the country of their origin and is sought to be removed by DHS is required to be placed in removal proceedings. A Notice to Appear citing the applicable grounds of inadmissibility is served on the alien or his representative. If more than one ground of inadmissibility is applicable, all grounds should be included in this charging document. It appears that the Border Patrol, clearly inundated by the number of illegal aliens to be processed, was unable to carefully screen these unaccompanied minors for all applicable grounds of inadmissibility. Some illegal alien families were released on their own recognizance, given bus tickets, and told to later report to DHS offices for additional processing. Unfortunately, it has been reported that 70% of illegal families are no shows for these required follow-up appointments.

All illegal aliens should be processed to insure that they are not inadmissible because of gang membership or affiliation or other criminal grounds of inadmissibility. Gang members or other members of organized criminal organizations are inadmissible under INA 212(a)(3)(A)(ii). This section provides that an alien who a consular officer or the Attorney General knows or has reason to believe, seeks to enter the United States to engage in any unlawful activity is inadmissible. An alien who falls within one of these categories is disqualified from obtaining a visa or admission into the United States.

The Department of State Foreign Affairs Manual provides a legal basis and guidance for determining whether gang members are inadmissible under INA 212(a)(3)(A)(ii). Under 9 FAM 40.31, Note 5.3, the Department of State determined that inadmissibility under this section may arise from the fact that the applicant is a member of a known criminal organization. In 2005 this ground of inadmissibility was extended to cover active members of organized Salvadoran street gangs in North America such as the Mara Salvatrucha 13 and 18th Street Gangs. In 2011, this ground of inadmissibility was further extended to active members of the Yakuza and the organized biker gangs of Hells Angels, Outlaws, Bandidos, and Mongols. Other organized street gangs from El Salvador, Honduras, and Guatemala are also considered to be known criminal organizations. The Department of State determined that these identified groups operated as permanent organized criminal societies and that active membership could be considered a permanent association with criminal activities which would be unlawful. It is important to note that a finding of active membership in organized criminal societies equates to a permanent ground of inadmissibility for which there is no waiver. In addition, a finding of inadmissibility under this section disqualifies that individual from naturalizing to become a United States citizen.

Under 9 FAM 40.31, Procedural Note 1.3, the Department of State provides guidelines for determining whether an applicant for a visa is a member of an organized crime group. Border Patrol agents should follow the same guidelines in determining whether, after reviewing the totality of the circumstances and the information available, a suspected gang member is inadmissible and barred from entry. The relevant factors to be considered include: (1) acknowledgement of membership by the individual, the organization, or another party member, (2) actively working to further the organization’s aims in a way to suggest close affiliation, (3) receiving support or recognition from the organization, (4) determination of membership by a competent court, (5) statement from local or law enforcement authorities that the individual is a member, (6) frequent association with other members, (7), voluntarily displaying symbols of the organization, and (8) participating in the organizations activities, even if lawful.

Tattoos become relevant as an applicant for admission bearing certain tattoos may be considered to be displaying symbols of the organization or acknowledging membership in an organized crime group.

Policies and/or practices that result in Border Patrol Supervisors advising agents to treat suspected gang members as all other unaccompanied minors and ignore obvious evidence of gang affiliations seriously undermine our immigration enforcement efforts. The release into our communities of significant numbers of aliens with criminal histories or gang affiliations will have serious consequences for those communities and the nation as a whole. The magnitude of this problem cannot be immediately determined as no statistical data has been disclosed by DHS nor is it presently available as it appears that the number of suspected UAC gang members who have been allowed to enter has not been documented. There has been little transparency in the processing of these illegal aliens. The public has been assured that there are no criminal unaccompanied alien minors transported or released into our communities. However, the anecdotal evidence belies this assertion. The problem could have been avoided if these children with no viable claims for relief from removal had been immediately returned to their countries of origin. Instead, the current legislation results in disseminating them across our country to further impede immigration enforcement efforts and add to the backlogs in our immigration court system at great expense to US taxpayers.

A special comment is in order relating to the parents and relatives of these unaccompanied minors and the advocacy groups that support them. It is ironic that family members of these unaccompanied minors who maintain that the children were fleeing gang violence in their home countries would entrust their children to the very gangs and criminal elements they claim to fear by paying them $5000 to $8000 per child to smuggle them through Mexico into this country.

They have enriched and strengthened the very groups they claim they fear. No one benefits more from open border policies than these gangsters. Earnings from smuggling and associated blackmail by these groups fill their coffers.

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