[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
                     ALIEN GANG REMOVAL ACT OF 2005

=======================================================================

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 2933

                               __________

                             JUNE 28, 2005

                               __________

                           Serial No. 109-52

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                 Luke Bellocchi, Full Committee Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 28, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, acting Chair, Subcommittee on Immigration, 
  Border Security, and Claims....................................     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     2
The Honorable Darrell Issa, a Representative in Congress from the 
  State of California............................................     3
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Ranking Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     4

                               WITNESSES

The Honorable J. Randy Forbes, a Representative in Congress from 
  the State of Virginia
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Kris W. Kobach, Professor of Law, University of Missouri-
  Kansas City
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Mr. Michael M. Hethmon, Staff Counsel, Federation for American 
  Immigration Reform
  Oral Testimony.................................................    15
  Prepared Statement.............................................    17
Mr. David Cole, Professor, Georgetown University Law School
  Oral Testimony.................................................    28
  Prepared Statement.............................................    30

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    59
Revised Prepared Statement of David Cole, Professor, Georgetown 
  University Law School..........................................    61


                     ALIEN GANG REMOVAL ACT OF 2005

                              ----------                              


                         TUESDAY, JUNE 28, 2005

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 3:02 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Louis 
Gohmert (acting Chair of the Subcommittee) presiding.
    Mr. Gohmert. It's a few minutes after 3 o'clock, so we'll 
go ahead and get started.
    Today, the Subcommittee on Immigration, Border Security, 
and Claims will examine H.R. 2933, the ``Alien Gang Removal 
Act.'' We have witnesses here ready to testify.
    At this point I do have an opening statement, but in the 
interest of time, we have four witnesses, I may just go ahead 
and submit that in writing if there's no objection. So with 
unanimous consent of the Committee, that will be done.
    I would like to introduce the witnesses. The first witness, 
the Honorable Randy Forbes. Congressman Randy Forbes is 
currently serving his third term representing the Fourth 
District of Virginia. He is a Member of the House Armed 
Services Committee, Science Committee and the House Judiciary 
Committee. It seemed like I had seen you here before. He has 
focused his efforts in Congress on protecting the security and 
sovereignty of our Nation. From 1989 to 1997, he served the 
Commonwealth of Virginia in the General Assembly, first as a 
member of the House of Delegates and then as a State Senator 
from 1997 to 2001. Congressman Forbes was valedictorian of his 
1974 class at Randolph Macon College, and holds a J.D. degree 
from the University of Virginia Law School.
    Also we have Professor Kris Kobach. Is that c-h like a 
``k?'' All right, thank you. Kris Kobach. He is a Professor of 
Law at the University of Missouri at Kansas City School of Law, 
where he teaches constitutional law, American legal history, 
legislation and legislative drafting. From 1995 to 1996, Mr. 
Kobach was a judicial clerk for Judge Deanell Tacha of the 10th 
Circuit U.S. Court of Appeals. In 2001 he came to Washington to 
become a White House Fellow. After his fellowship, from 2002 to 
2003, Mr. Kobach was counsel to Attorney General John Ashcroft. 
In this position he served as the Attorney General's chief 
legal and policy advisor on immigration law and border 
security. The author of numerous books and scholarly 
publications, Mr. Kobach is a summa cum laude graduate of 
Harvard University with a BA in government. After graduating 
first in his class from the Government Department at Harvard, 
Mr. Kobach was a Marshall Scholar at Oxford University, where 
he received a master's and a doctorate in politics. He returned 
to the United States and received his J.D. from Yale Law School 
in 1995.
    Then we have Mr. Michael Hethmon. He is Staff Counsel for 
the Federation for American Immigration Reform and a member of 
the Maryland State Bar. He has published several law review 
articles and has had material published on ILW.com, the leading 
immigration law publisher. Mr. Hethmon has served as a 
spokesman for FAIR in various media settings and has 
participated on radio programs. He received a bachelor's degree 
from the University of California Los Angeles, a master's 
degree in international management at the Thunderbird Graduate 
School of International Management, and his J.D. from the 
University of Maryland School of Law.
    Then also we have Professor David Cole. Professor Cole is a 
Professor of Law at Georgetown Law School with an expertise in 
constitutional law, criminal procedures, and Federal courts. He 
has worked as a staff attorney for the Center for 
Constitutional Rights and litigated a number of major first 
amendment cases including Texas v. Johnson, and National 
Endowment for the Arts v. Finley. Professor Cole served as a 
law clerk to Judge Arlen Adams of the United States Court of 
Appeals for the Third District. He is a legal affairs 
correspondent for The Nation, a commentator on National Public 
Radio, and the author of three books. Mr. Cole has received 
awards for his civil rights and civil liberties work from the 
American Bar Association, the National Lawyers Guild, the 
American-Arab Anti-Discrimination Committee, Political Asylum 
and Immigration Rights Project, and the American Muslim 
Council. Mr. Cole received his B.A. and his J.D. from Yale 
University.
    At this time I'd ask the witnesses to please rise for the 
oath. If you would rise and raise your right hand.
    [Witnesses sworn.]
    Mr. Gohmert. Let the record reflect all four witnesses have 
been sworn.
    I've been advised that the gentleman from Michigan, Mr. 
Conyers, would like to make an opening statement. Is that 
correct?
    Mr. Conyers. Yes, Chairman Gohmert.
    Mr. Gohmert. Then the Chair will yield 5 minutes to the 
gentleman from Michigan.
    Mr. Conyers. Right. Did you intend to make an opening 
statement, sir?
    Mr. Gohmert. I had mentioned earlier, as we started, that I 
have an opening statement. In the interest of time that I would 
just submit it in writing, and there was unanimous consent. I 
offered and all these people here did not object, so----
    Mr. Conyers. Well, I certainly won't object.
    Thank you, Mr. Chairman, and Members of the Committee.
    I want to welcome all the witnesses and let you know that 
this is a very unusual time that we're in. First of all, we're 
having limits put on the right of habeas corpus for those on 
death row. We've got a Subcommittee hearing coming up on this 
in the Subcommittee on Crime. In addition, we've just passed 
another bill out of this Committee that would expand the 
Federal death penalty provisions and mandatory sentencing on--
and it would have a detrimental impact on young people in 
particular.
    So we've got capital punishment provisions on the way and 
habeas corpus limitations also coming out of the Subcommittee, 
and today we're dealing with a subject matter that raises the 
questions about how we deal with anti-gang--with gang violence 
and what steps can be taken to deal with them.
    And I am a little bit surprised that we are in the process 
of considering a measure that is replete with constitutional 
violations. I can't remember scanning through so quickly to 
come across so many all at once. This bill empowers Homeland 
Security to deport foreign nationals who have never committed 
any crimes whatever. It has a procedure for designating 
criminal street gangs that violates constitutional rights, 
giving the Secretary of Homeland Security unchecked power to 
blacklist domestic groups through a secret process with little 
or no notice to be heard by others.
    We have a system that to me I thought we had taken care of 
in some earlier Supreme Court cases, but it looks like they 
haven't been. The Alien Gang Removal Act now embraces guilt by 
association, which has been dealt with by the Supreme Court in 
other cases a number of years ago. We are concerned about the 
treatment of gang crimes that would radically expand 
deportation grounds for certain crimes that are already 
criminalized.
    We think--I would like to start off by positing this to the 
witnesses, that there are sufficient criminal penalties and 
process that would allow us to get at all youth criminal gangs, 
all non-citizen gangs, within immigration law and with criminal 
law, that would make a measure like this completely 
unnecessary. And the idea that we could criminalize people who 
have never committed a crime in their life within the scopes of 
this proposal is quite staggering. And so I'm hoping that we 
will have a discussion that can point to some of these issues, 
and I welcome the witnesses as they come forward, and I thank 
the Chairman for giving me the time.
    Mr. Gohmert. Thank you.
    We've been joined by the gentleman from California, Mr. 
Darrell Issa, and Mr. Issa, would you like to make an opening 
statement?
    Mr. Issa. Very briefly, and I'll have----
    Mr. Gohmert. The Chair yields for 5 minutes.
    Mr. Issa. I ask unanimous consent to have my written 
statement put in the record. But I do want to offer a 
perspective in concert with the Ranking Member. When Mr. 
Conyers says he's deeply concerned, I'm deeply concerned, but I 
think from a slightly different perspective. I wonder if in 
fact this country is going to continue to be the only country 
on earth in which a guest, a non-citizen guest, is allowed to 
operate in an organized gang that--in Los Angeles or in San 
Diego or anywhere in the country, terrorizes communities, 
reduces the quality of life for residents, both citizens and 
non-citizens, and then say, ``But if you don't catch me with a 
felony and incarcerate me, you can't send me outside the United 
States.''
    So I certainly hope that this piece of legislation on a 
bipartisan basis will be looked at in light of the problem of 
people who in fact should be deported but we have to wait until 
we catch them in a specific criminal act, particularly a 
felony, before we have a chance. That's not the standard in the 
rest of the world. The standard in the rest of the world is, if 
you're a guest, you are held to a higher standard of behavior 
than in fact a citizen for whom deportation is not an 
administrative remedy. And with that, I yield back.
    Mr. Gohmert. The gentleman from California yielded back.
    We've also been joined by the gentleman from California, 
Mr. Dan Lungren. Would you like to make an opening?
    Mr. Lungren. No.
    Mr. Gohmert. All right. Very well.
    At this time we're ready to proceed with opening--well, 
we've been joined by the gentlewoman from Texas, Ms. Jackson 
Lee. Would you want to make an opening at this time?
    Ms. Jackson Lee. Yes, Mr. Chairman.
    Mr. Gohmert. Very well. The Chair yields 5 minutes to the 
gentlelady from Texas.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    And I acknowledge my Ranking Member of the Full Committee, 
Mr. Conyers. I thank him for his presence here today and the 
other Members.
    Let me thank the witnesses for their presence here as well.
    This is an important hearing because it's an opportunity 
for the concern we have about terrorist gangs to have a full 
hearing along with the restraints and concern that we have 
about the automatic deportation of individuals on the basis of 
association.
    We all agree, Mr. Chairman, that violent immigrants who 
commit crimes should be deported, and particularly we agree 
that those who associate with violent gangs, now who are 
springing up in many of our southern regions and particularly 
on the border, should be in line for deportation, those who 
perpetrate violent acts and those who may be associated with 
gangs that ultimately may be engaged in terrorist acts.
    But I think there is a clear demarcation, and that is that 
sheer membership, sheer association should not equate to 
deportation. And in the instance of the legislation that we 
will be reviewing today, as I've read it, even if this gang has 
been classified as violent or on the list on the basis of 
crimes that the gang perpetrates, the gang may be in the 
business of getting as many friends and recruits as they 
possibly can, even to the extent of recruiting 10-year-olds, 
such as what is happening in Houston, Texas, my question would 
be, does that sheer association and membership equate to a 
deportation? If that is the case, that is unacceptable.
    So this is an important hearing because I believe in 
keeping an open mind. I believe this legislation introduced by 
Congressman Forbes on June 16, 2005, called the Alien Gang 
Removal Act of 2005, has some positive elements regarding 
dealing with gangs that perpetrate criminal acts. But in such 
we have relied primarily on three basic strategies for dealing 
with the problem of youth gangs, suppression which has meant 
longer sentences and penalties, intervention through job 
training, education and skills development in an attempt to 
reform gang members, and prevention through school and 
community based programs designed to reach out to at-risk 
children before they become involved with gangs.
    The Alien Gang Removal Act presents a new strategy. AGRA 
would attempt to reduce the number of immigrant gang members in 
the United States by changing our immigration laws. From my 
perspective then, it eliminates intervention and prevention, 
which are very important elements, and the question is whether 
Federal jurisdiction should take the place of local communities 
trying to fight against at-risk children engaging in membership 
in gangs.
    This bill would establish 3 new exclusion grounds. The 
first would make someone inadmissible to the United States for 
having been deported on the basis of criminal street gang 
participation. Someone who has been deported is already 
inadmissible regardless of the reason for deportation. Under 
existing law, however, inadmissibility would only be for a 5-
year period. Under the new provision, inadmissibility would be 
permanent.
    The second would make an alien excludable if the 
immigration inspector had a reasonable ground to believe that 
the alien is a gang member entering to engage in unlawful 
activity. I'm concerned that this would lead to profiling and 
that aliens who have tattoos or other indicia of gang 
membership would be excluded on little more than their 
appearance. Once excluded, they would be permanently barred 
from admission to the United States without judicial review.
    The third would make someone inadmissible for being a 
member of a group or association of three or more individuals 
that have been designated by the Attorney General as a criminal 
street gang. Another provision in AGRA would make membership in 
a designated criminal street gang a deportation ground too. 
Members of designated criminal street gangs also would be 
statutorily ineligible for asylum, withholding and removal and 
temporary protected status, and they would be subject to 
criminal alien detention provisions.
    Mr. Chairman, it is not whether or not you are a person 
that should be deported because you are violent, you are 
engaging in terrorist activities, you're a member of a gang and 
you have participated in violence. It is a question of whether 
random association equates to deportation of mass numbers of 
individuals because we don't like them.
    Mai Fernandez was our witness at the April 13, 2005 hearing 
on imminent gangs--immigrant gangs. She is the Chief Operations 
Officer for the Latin American Youth Center in the District of 
Columbia. She works with gang members on a daily basis. She 
explained at the hearing that most youth gang members in our 
community are not criminals. According to Ms. Fernandez, 
joining a gang gives a youth a group of friends to hang out 
with and a sense of security which they cannot get elsewhere in 
their lives. These kids are not super predators. They're kids 
looking for a sense of belonging.
    According to Houston's Anti-gang Office and Gang Task 
Force, the gang known as MS-13 has been recruiting children 
from local elementary schools. That is wrong, and it is wrong 
from the children to join, but if they do join, their 
membership alone may cause them to be deported, taken away from 
their families and youngsters as young as 10-years-old.
    In conclusion, Mr. Chairman, might I say that I find the 
approach of a strict deportation on association to be 
questionable minimally and wrong at best. I hope that we can 
work together to solve this problem, but to also understand 
that prevention and intervention are important.
    I ask unanimous consent that the entirety of my statement 
be submitted in the record. I yield back.
    Mr. Gohmert. Hearing no objection, there is unanimous 
consent for submitting the entirety of your written remarks.
    I would also advise the witnesses today you'll be given up 
to 5 days to revise and extend your remarks if you care to do 
so. We are operating under a 5-minute rule. Each of you will 
have 5 minutes to make an opening statement. We'll be very 
strict with that, so please understand. But understand also the 
testimony will not be lost because you will have an opportunity 
to submit it in writing and make it a part of the record, and 
it will be part of the permanent record.
    So with that, Mr. Forbes, if you would, your time will 
begin with your opening statement. Thank you.

TESTIMONY OF THE HONORABLE J. RANDY FORBES, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF VIRGINIA

    Mr. Forbes. Thank you, Mr. Chairman, and thank the Members 
of the Committee for allowing me to be here. It is a privilege 
for me to be here with the other members of the panel.
    Mr. Chairman, I also have a written statement that I would 
like to submit for the record, and I am just going to talk to 
you outside of that written statement if it's agreeable. The 
first thing I want to do is tell you I'm not going to repeat 
all of the gang problems that we have in the United States 
because I know that the Members of this Committee have heard 
them, and at least at this point in time I don't think there's 
any disagreement that we have an enormous gang problem that 
we're facing in the country with as many as 750 to 800,000 
criminal gang members.
    Just in the last 4 years gang crimes have been up 50 
percent, and if you just picked North Carolina in the last 2 
years, there have been 18 MS-13 killings alone, Northern 
Virginia 11, LA 8.
    The important thing about this bill is it is a bipartisan 
bill, and whenever we try to address the gang problem, one of 
the things that always happens--this is like an old Casablanca 
movie--we round up the normal suspects and everything in it is 
unconstitutional. The other thing that we always find is this, 
we always will find that there's two different strategies. 
There are those who want us to wait until we have victims to do 
something about it, and there are others of us who believe that 
we can make the situation better before we get the victims.
    There are three big pipelines that feed the gang problem in 
the United States today. If we miss those pipelines we can 
never solve the problem. The first one is the gang leaders and 
the gang networks that continue to recruit and expand and 
franchise their violence. We passed a bill a few weeks ago that 
deals with those networks and will try to bring those networks 
down.
    The second problem is what Ms. Jackson Lee mentioned, in 
that we allow environments of opportunity for gang recruitment, 
whether it's broken families or loss of job opportunities, or 
lack of education, and that's a whole other pipeline that we 
have to look at.
    But the third big pipeline, what this bill deals with, is 
some of the immigration problems that we face. By testimony 
given to this Subcommittee alone, we heard that MS-13 probably 
has between half to two-thirds of their members that are here 
illegally, the most violent gang in America today. Eighteenth 
Street, 60 percent of their members here illegal; Surenos-13, 
75 percent. Lil' Cycos, 60 percent of their people here 
illegally.
    Mr. Chairman, there are two big problems with that. The one 
thing that we have is if somebody comes to our doors today, 
wants to come in the borders, if they have a sign on their 
forehead that says they're a member of the most violent 
criminal gang in America, if they have stamped on their visa 
application they were a member of that gang, that in and of 
itself is not reason enough under our law to keep them from 
coming into the country.
    The second thing is, based on temporary protected status, 
which we gave to people from El Salvador in 2001, we 
essentially put a blanket of protection over criminal gang 
members here illegally because under TPS if a criminal gang 
member is outside of our doors today, and he has a sign that 
says ``I'm here illegally,'' a sign that says ``I'm a member of 
a violent criminal gang,'' he is protected by TPS and cannot be 
deported out of the country. We think that's wrong.
    And what this bill does is to say this. It says that when 
somebody comes into our country, that we ask them whether or 
not they're a prostitute, we ask them many other questions that 
keep them out of the country. We think it makes good common 
sense to ask them, are you a member of a violent criminal gang? 
This bill would say we're not only going to ask them that, but 
if they're a member of a violent criminal gang, we're not going 
to give them admission into the country.
    The second thing it says is, if you're here in this 
country, if you're visiting in this country and you decide that 
you're going to be a member of a violent criminal gang, then we 
can deport you out of this country, and that is a reason for 
deportation because there is no socially redeeming value for 
individuals to be members of violent criminal gangs in the 
country.
    In addition to that, Mr. Chairman, what this bill will do 
is allow the Attorney General to designate violent criminal 
gangs in the country. We set forth a judicial review process 
for that. We give notice to Congress for that so that we can 
overturn that. We have a method for looking at and examining 
that designation. And then once the Attorney General has done 
that, Homeland Security then will be able to designate 
individuals who are members of violent criminal gangs.
    It would have to be proved, of course, in an immigration 
hearing, but once that's done, if you're in this country, and 
you're a member of a violent criminal gang, we can deport you. 
If you're coming into the country we can stop you from coming. 
We think that's an important component for stopping this huge 
rise in violence from our criminal gangs, and we hope this 
Committee will see fit to pass the bill.
    [The prepared statement of Mr. Forbes follows:]

 Prepared Statement of the Honorable J. Randy Forbes, a Representative 
                 in Congress from the State of Virginia

    Mr. Chairman, Ranking Member Jackson Lee, and members of the 
Subcommittee, I thank you for inviting me to join you to discuss 
efforts to strengthen our laws that will protect our communities from 
violent gang members. Let me commend you at the outset for holding this 
important hearing and for your willingness to examine this critical 
issue.
    According to the U.S. Justice Department, there are currently over 
30,000 gangs and over 800,000 gang members who are active in more than 
2,500 jurisdictions across the United States. Every city in the country 
with a population of 250,000 or more has reported gang activity. Gang 
activity has been directly linked to the narcotics trade, human 
trafficking, identification document falsification, violent maiming and 
assault, and the use of firearms to commit deadly shootings.
    No longer is the ``gang problem'' limited to so-called urban street 
gangs, or motorcycle gangs from the past--the violent gang epidemic is 
national and even international in scope and extends into suburban and 
rural communities, and has grown into organized, tightly-knit criminal 
syndicates.
    One of the most notorious gangs--MS-13--is international in scope 
and has 8,000 to 10,000 active members operating a sophisticated 
network of organized units in 31 states. MS-13 has a significant 
presence in Northern Virginia, New York, California, and Texas, but can 
also be found in Oregon City, Oregon, and Omaha, Nebraska. 
Internationally, the gang is estimated to have as many as 50,000 
members.
    MS-13 is a violent gang comprised primarily of illegal immigrants 
from Central America, which originated in Los Angeles and has now 
spread across the country. They were recently dubbed by Newsweek as 
``the most dangerous gang in America.''
    Fortunately, through the leadership of Chairman Sensenbrenner and 
members of the Judiciary Committee, the House passed with bipartisan 
support, H.R. 1279, the Gang Deterrence and Community Protection Act of 
2005 by a vote of 279 to 144. The passage of this ground-breaking 
legislation marks the toughest and most targeted federal gang 
legislation ever to come out of the U.S. House of Representatives. The 
bill seeks to rip apart criminal gang networks by increasing tools and 
resources for local, state, and federal police and mandating tough 
sentences for violent criminal gang acts.
    Yet, more must be done to win the fight against violent criminal 
gangs. America's gang epidemic is not just a crime problem, but an 
immigration problem as well. Our current immigration laws have not kept 
pace with the flood of gang members who have entered our country over 
the last several decades.
    For that reason, I introduced H.R. 2933, the Alien Gang Removal Act 
(AGRA), which would designate aliens who are members of violent 
criminal gangs as an inadmissible class under the Immigration and 
Nationality Act (INA). Currently, there is no specific authority under 
the INA that allows for the deportation of an alien based on their 
membership in a criminal gang. My legislation would build upon similar 
provisions in the INA that render members of terrorist organizations 
also inadmissible. My legislation starts with the basic principle that 
there is no societal benefit to allowing aliens to come to the United 
States as part of a violent criminal gang.
    First, AGRA would put violent gang members on a fast-track for 
deportation by designating an alien who is a member of a violent 
criminal gang inadmissible for entry into the United States and 
deportable under the INA. Currently, an alien's membership in a 
criminal gang is not grounds for inadmissibility to the United States 
in and of itself under the INA. The Alien Gang Removal Act would amend 
the INA to give consular officers an automatic reason to reject entry 
into the United States to any alien they know, or have reasonable 
grounds to believe, is a member of a criminal gang.
    While it is unlikely that an alien would admit to membership in a 
criminal gang on his or her visa application, providing a false answer 
to such a question would be grounds to charge an alien with immigration 
fraud. If convicted, the alien could be fined and subjected to jail 
time based on the circumstances of the offense. Also, while the 
majority of gang members enter the United States illegally, our laws 
should state the general principle that criminal gang members are 
specifically inadmissible and deportable under the INA.
    Second, my legislation would protect our neighborhoods from gang 
members who have already entered the U.S. by allowing for the 
deportation and mandatory detention of aliens who are members of a 
violent criminal gang. My bill states that it is not enough to wait 
until a gang member has committed a crime to deport them. If you join a 
violent criminal gang, then you should lose the right to stay in the 
United States.
    Third and more importantly, AGRA would expedite the deportation of 
alien gang members by barring most forms of immigration relief, 
including Temporary Protected Status (TPS). Unfortunately, under 
current law, alien gang members who have been granted TPS generally 
cannot be returned to their native countries without having first been 
convicted of a felony or other specified criminal offense. My 
legislation would expand the bars to TPS to include affiliation with a 
federally identified criminal gang.
    Aliens from eight countries currently have temporary protection 
from deportation. Among these are El Salvador (native country to the 
MS-13 gang), Burundi, Honduras, Liberia, Montserrat, Nicaragua, 
Somalia, and Sudan. The estimated number of aliens currently protected 
range from 292 Montserratians to over 290,000 Salvadorans.
    It makes absolutely no sense to allow gang members, many of whom 
are here illegally, to be free from deportation until they have 
committed a crime. Gang members who are shielded from deportation by 
TPS are a significant problem that must be addressed through 
legislation. While the exact number of gang members protected by TPS is 
unknown, at an April 13, 2005 Immigration Subcommittee hearing, the 
Department of Homeland Security stated that of the 5,000 gang members 
detained under Operation Community Shield, approximately 350 had been 
granted TPS. That means that because of TPS, we know there are 350 gang 
members who will be back on our streets terrorizing our communities and 
neighborhoods. What we do not know, however, is how many gang members 
who are protected by TPS we would find if we examined the 800,000 gang 
members the Department of Justice suggests are currently within our 
borders instead of only examining the 5,000 gang members detained under 
Operation Community Shield.
    In order to offset the destructive influence of gang activity in 
our nation, it is crucial that those who participate in gang activity 
are identified and met with appropriate action. For the large number of 
gang members who are foreign nationals, this goal would best be served 
through their deportation and immediate removal from our communities--
regardless of their immigration status. H.R. 2933 is a fair and 
reasonable response to further secure the safety of our communities, 
and I would deeply appreciate the Subcommittee's assistance in moving 
the Alien Gang Removal Act through the Committee and to the floor of 
the House of Representatives. Thank you for your attention to this 
important matter.

    Mr. Gohmert. Thank you, Mr. Forbes.
    At this time, we will hear from Mr. Kobach for 5 minutes.
    I'm sorry. For the record, it should reflect that Mr. 
Berman from California has entered the hearing early on in Mr. 
Forbes' comments, and also Mr. Smith from Texas has also joined 
us.
    Ms. Jackson Lee. Did you note--excuse me, Mr. Chairman. Did 
you note Mr. Berman has also joined us?
    Mr. Gohmert. Yes, that's what I just--I'm sorry. I guess 
you were talking when I said this, but yeah, I did note that.
    Mr. Kobach, you have 5 minutes.

 TESTIMONY OF KRIS W. KOBACH, PROFESSOR OF LAW, UNIVERSITY OF 
                      MISSOURI-KANSAS CITY

    Mr. Kobach. Thank you, Mr. Chairman. I will skip much of my 
written comments, statistics on the extent of the gang problem. 
I think the Committee is well aware of that.
    But I want to pause on one point, and that is that--let me 
give you a case study. The study is the city of Omaha. I'm good 
friends with a police officer in Omaha. Omaha is not a place 
you would normally think of as a gang-ridden city, but in fact 
it has become exactly that. Omaha typically sees just over 20 
homicides a year, but that's changing. In the final quarter of 
2004, the gangs MS-13 and the 18th Street gang dramatically 
increased their presence in Omaha, and in the last quarter of 
2004 gang activity was up 29 percent, and in the first quarter 
of 2005 it was up 39 percent, and the number of homicides has 
risen accordingly. Omaha is now on pace to have the greatest 
number of homicides in any year.
    The police officers are scared. The police officers know 
that they face a threat unlike any previous gang periods or 
phases in this country's history. These are nationwide, indeed 
continent-wide networks of gangs. They are very well armed and 
they behave differently than gangs in the past have done. They 
shoot to kill, and I'll talk a little bit more about that in a 
moment. And their associations with other gangs around the 
country are much tighter and much more well organized.
    Now, the gangs that we face today in America's cities such 
as Omaha--and of course there are much bigger gang problems in 
places like the D.C. area and Los Angeles and New York--is that 
these alien gangs have an advantage that previous gangs did not 
have, and that gangs composed primarily of U.S. citizens do not 
have; and that is that they have sanctuaries in foreign 
countries. This gives them a real advantage in escaping law 
enforcement. I'm of course referring to the fact that there are 
several countries that refuse to extradite their citizens if 
their citizens face the death penalty, or more recently in the 
case of Mexico--since October of 2001--if they even face life 
imprisonment.
    This in effect allows the gang members to commit a serious 
crime and then escape to their home country where they can 
remain until they feel safe coming back into the United States. 
I would note also that El Salvador, the nationality of the 
majority of MS-13 gang members, also has a constitutional 
provision prohibiting the extradition of any of its citizens to 
a country where the death penalty is in force.
    Now, this not only creates a sanctuary for the gang members 
after they commit a crime in the United States, it also creates 
a very disturbing incentive, and this is an incentive that 
police officers have noticed. It's very difficult to document, 
but it is simply this: the more serious your crime, the greater 
the likelihood that your country's laws will offer you shelter 
from extradition. It is a well-established fact that so many of 
the MS-13 murders conclude with an execution style murder. The 
victim is shot initially through the chest or some other part 
of the body, but then the gang member assassinates the person 
with a bullet to the head. It is often thought that this is not 
only a means of intimidation, but it is also a means of 
ensuring that the person cannot be extradited to the United 
States, and then of course the person departs for El Salvador 
or Mexico or wherever the destination is.
    Clearly, this is a threat that law enforcement has not 
encountered before. In the last few years, with the rise of 
these illegal alien gangs, it is important that every possible 
law enforcement tool be brought to the conflict, and that's why 
immigration enforcement is so critical here, because so many of 
the members are aliens.
    Now, we know that Immigration and Customs Enforcement, or 
ICE, has had some success with, for example, Operation 
Community Shield, which in March resulted in the arrest of 105 
MS-13 members. But that operation is limited to those members 
who are--gang members who are already in violation of 
immigration law. This bill, 2933, would expand the ability of 
ICE to use immigration enforcement in a just and reasonable way 
against gang members present in the United States.
    There are basically three ways where it improves the 
situation. One is by making membership in the gang--active 
membership in a gang--which must be established I might add in 
front of an immigration judge; it's not simply the mere 
exertion by an Executive Branch official, and that of course 
can be appealed to a Circuit Court of Appeals--making that a 
basis for removal is critical. Another critical portion of 2933 
is alleviating the restriction on removal to countries where 
the alien's life might be in danger. And a third critical 
component of 2933 is to raise the protection of temporary 
protected status.
    Now, under current law, for example, with Operation 
Community Shield, the way that operation worked is that the 
relevant police departments provided lists of known gang 
members to ICE, and then ICE was able to take those lists and 
run them against their data of all people lawfully admitted to 
the country. And they were able to deduce who was not lawfully 
admitted to the country.
    Well, some gang members are actually legally present, 
albeit not U.S. citizens, and this would allow them to expand 
the number of gang members against which immigration 
enforcement tools could be used.
    The second aspect that I just mentioned was where a gang 
member uses the protections of 241(b)(3)--that is, he can't be 
removed to his home country because he fears reprisal or he 
fears some sort of persecution in his home country. I have 
personally seen this happen in my capacity representing the 
United States in the courts of the United States. Lawyers 
representing these gangs--these aliens, will use every means 
they can to avoid deportation to the home country, and that 
includes even cases where the alien himself has been a member 
of a death squad. And I've actually argued a case of exactly 
that. Using----
    Mr. Gohmert. All right. Thank you. Your time has expired. 
Thank you.
    Mr. Kobach. Okay.
    [The prepared statement of Kobach follows:]

                  Prepared Statement of Kris W. Kobach

           THE SCOPE OF THE ILLEGAL ALIEN STREET GANG PROBLEM

    Mr. Chairman and Members of the Committee, as you know, the alien 
street gangs that are responsible for hundreds of murders in the United 
States in the last few years present an extremely difficult law 
enforcement challenge. As one police officer told me recently, these 
gangs present a far more deadly threat than their predecessors. 
Compared to the dominant gangs of the early 1990s, which were composed 
primarily of U.S. citizens from inner-city areas, today's street gangs 
are composed overwhelmingly of illegal aliens and are more violent, 
more likely to kill, and more likely to operate within well-organized 
criminal networks that not only span the country, but span the 
continent.
    A few statistics illustrate the scope of the problem. Mara 
Salvatrucha-13 (MS-13), the most notorious and fastest-growing alien 
gang, started as a Salvadoran gang in Los Angeles in the late 1980s. 
Its association with El Salvador has always been an important part of 
its identity, with gang members in many cities using the blue and white 
national colors of El Salvador as their gang colors. MS-13's more than 
10,000 members operate in at least 33 states. Those states are as far 
flung as Alaska, Michigan, Idaho, Georgia, New York, and Nebraska. The 
overwhelming majority of its members are illegal aliens, primarily from 
El Salvador, but also from Honduras. The presence of MS-13 is 
particularly strong in the metropolitan Washington, D.C., area 
(including northern Virginia and southern Maryland), with an estimated 
5,000 to 6,000 members. But MS-13 also has established a very large 
footprint in areas that have not previously been subject to gang 
violence. There are approximately 200 MS-13 members in Charlotte, North 
Carolina. There are approximately 300 in suburban Long Island. And MS-
13 still remains smaller than the largest alien gang, the 18th Street 
Gang--which started in Los Angeles with primarily Mexican membership 
and then expanded nationwide. It is estimated to have more than 20,000 
members in the Los Angeles area alone. In both gangs, the majority of 
members are illegal aliens. The gangs generate cash in different ways 
in different parts of the country. But by far, the most common forms of 
activity are drug trafficking, theft, gun trafficking and immigrant 
smuggling.
    Where MS-13 or the 18th Street Gang establish a presence, the blood 
inevitably flows soon thereafter. In Los Angeles, the various street 
gangs accounted for 291 of the city's 515 homicides in 2004--an 
increase of 12.4% in gang killings over 2003. In places newly 
acquainted with alien gang activity, the numbers are smaller, but each 
murder is more shocking to these once gang-free communities. In 
Charlotte, for example, MS-13 members have committed at least 19 
murders in three years between 2000 and 2003.
    Consider the example of Omaha, Nebraska, not far from where I live. 
Mid-sized Midwestern cities like Omaha have recently seen the growth of 
illegal alien gangs--an entirely new phenomenon for local law 
enforcement. Omaha is a city that typically sees between 20 and 30 
homicides a year. However, in late 2004, there was a dramatic increase 
in violence in south Omaha, perpetrated mainly by alien gangs. MS-13 
and the 18th Street Gang increased their presence in the city, and this 
is reflected in recent statistics. According to the Omaha Police 
Department figures, total gang activity in the fourth quarter of 2004 
increased 27% (over the same period the previous year), and gang 
activity in the first quarter of 2005 increased 39%. The number of 
homicides has risen accordingly, with the increase almost entirely 
attributable to the gangs.
    The alien gangs in Omaha control and perpetuate the drug trade 
there. According to the National Drug Intelligence Center, the 
marijuana in Omaha comes primarily from Mexican criminal gangs who 
transport it into the state by road using private and commercial 
vehicles. The same is true of the powdered and crack cocaine 
distributed in Omaha. And contrary to popular misconception, the 
majority of methamphetamine in Omaha comes from Mexico or California 
through the alien gang network. Although methamphetamine can be 
produced virtually anywhere, the alien gangs dominate the trade, 
bringing it in from south of the border or from California. This once-
quiet city now hears the gunfire of alien street gangs with disturbing 
regularity.

                          EXTRADITION BARRIERS

    Gangs composed primarily of aliens possess an advantage over law 
enforcement that other gangs do not have--sanctuaries in foreign 
countries that refuse to extradite criminals eligible for the death 
penalty. Those countries include Mexico and El Salvador. Mexico is the 
most notorious example, with more than 3,000 individuals who are 
suspected of committing murder in the United States now at large in 
their home country of Mexico. Mexico has no formal extradition 
arrangement with the United States. And since the Mexican Supreme 
Court's ruling in October 2001 (that life imprisonment is 
unconstitutional), that country has also resisted extraditing criminal 
suspects who are eligible for life imprisonment if convicted. El 
Salvador's constitution currently bans the extradition of Salvadoran 
nationals.
    This not only creates a sanctuary for gang members after they have 
committed their crimes in the United States, it may also be 
contributing to a disturbing incentive for gang members operating in 
the United States. The frequency of execution-style murders carried out 
by MS-13, the 18th Street Gang, and other gangs has been widely 
reported. Many in the law enforcement community will tell you that some 
alien gang members have intentionally and deliberately shot to kill, 
including shooting wounded victims through the head. One prominent 
theory is that many alien gang members do this in order to make sure 
that their crime is first degree murder--serious enough to bar 
extradition. Establishing the motive of such killers with certainty is 
obviously problematic. But given gang members' frequent reliance on the 
absence of extradition arrangements in order to evade U.S. law 
enforcement, it is not at all unreasonable to suspect that many 
intentionally heighten the severity of their crimes.

             THE USE OF IMMIGRATION ENFORCEMENT AS A TOOL 
                    IN FIGHTING ILLEGAL ALIEN GANGS

    Because so many of these gang members are aliens without lawful 
presence in the United States, sustained and focused enforcement 
efforts by Immigration and Customs Enforcement (ICE) can have a massive 
impact in fighting this national scourge. This was perhaps most 
dramatically demonstrated in March 2005, when ICE announced the arrest 
of 103 members of MS-13 in an operation spanning several weeks. Known 
as Operation Community Shield, it led to the arrest of 30 gang members 
in New York, 25 in the Washington, D.C., area, 17 in Los Angeles, 10 in 
Newark, and 10 in Miami. Although all were arrested for violations of 
federal immigration laws, approximately half had prior arrest records 
of prior convictions for violent crimes.
    This successful ICE operation was accomplished through the sharing 
of information between state and local law enforcement. Local police 
departments provided to ICE lists of names that those police 
departments had compiled of known alien gang members. ICE was then able 
to run that list through its databases to determine which, if any of 
those aliens was legally present in the country. After determining that 
the alien gang members were illegally present, ICE moved in with a 
series of arrests.
    Operation Community Shield was not the first use of immigration law 
enforcement against these gangs. In October-November 2004, ICE agents 
worked with local law enforcement in San Diego to arrest 45 MS-13 
members. And in 2003, ICE worked with local law enforcement in 
Charlotte to arrest and remove more than 100 MS-13 gang members.
    This episode demonstrates well how focusing immigration enforcement 
efforts against particular immigration violators can provide invaluable 
support to local law enforcement in their efforts to stem gang 
violence. It is an undeniable fact that immigration enforcement is a 
tool that can be used to effectively combat gangs when illegal aliens 
comprise a substantial proportion of gang members. Just as many members 
of terrorist organizations were removed after 9/11 on immigration 
violations rather being prosecuted in criminal courts, so to 
immigration enforcement can serve to remove illegal aliens who pose a 
danger to the community due to their membership in violent gangs.

                      THE PROVISIONS OF H.R. 2933

    Turning now to the provisions of H.R. 2933, it is clear that this 
bill, if enacted, would be very helpful in fighting alien street gangs. 
In my judgment, the three most useful aspects of the bill from a 
federal immigration enforcement perspective are the fact that it makes 
membership in a designated gang a basis for removal, the fact that it 
eliminates restrictions on removal to countries where the alien's life 
would be in danger (under INA Sec. 241(b)(3)), and the fact that it 
eliminates restrictions on removal to countries where ``temporary 
protected status'' (TPS) applies (under INA Sec. 244(c)).
    The first aspect would come into play whenever ICE launches an 
effort like Operation Community Shield and obtains lists of suspected 
gang members provided by local law enforcement. Under current law, ICE 
can only arrest those gang members who are not lawfully present in the 
United States. H.R. 2933 would expand the list of arrestable alien gang 
members to include those who happen to be lawful permanent residents or 
who are lawful nonimmigrant visa holders. As I have already noted, 
illegal aliens comprise the majority of gang members in these 
organizations, particularly in MS-13 and the 18th Street Gang. 
Nevertheless, there are some alien gang members who do have lawful 
status. H.R. 2933 would allow ICE to remove those alien gang members as 
well.
    The second aspect comes into play at the stage of removal 
proceedings. I have personally seen this happen when I have argued 
removal cases for the United States in federal court. Lawyers assisting 
criminal aliens who face removal will use any and every legal hook they 
can find to keep their client in the United States, including the fact 
that the alien himself was an abuser of human rights in his home 
country and now fears reprisals. I kid you not. Our laws are routinely 
twisted by aliens facing removal so that provisions designed to protect 
victims of human rights abuse end up protecting the abusers themselves. 
Without this provision in H.R. 2933, some alien gang members might be 
able to evade removal. For example, one of the MS-13 gang members 
arrested on March 13, 2005, during Operation Community Shield, in 
Hollywood, was a former member of the Salvadoran military who has prior 
convictions in the United States for robbery, possession of a dangerous 
weapon, and mail theft. Depending on the specific facts of his case, 
which I have not seen, he may attempt to claim that he cannot be 
removed to his home country under INA Sec. 241(b)(3).
    The other barrier to removal occurs when aliens are citizens of 
countries with temporary protected status. Although TPS protections do 
not apply to aliens who have been convicted of a felony or of two or 
more misdemeanors in the United States (under INA Sec. 244 (c)(2)(B)), 
TPS protections do prevent the immediate removal of an alien gang 
member not yet convicted of a felony in the United States. Removing TPS 
protection for gang members is of crucial importance if this bill is to 
have any serious effect on MS-13. MS-13 is primarily a Salvadoran gang, 
with substantial numbers of Honduran nationals as well. Salvadoran 
nationals have been sheltered from removal under temporary protected 
status since March 9, 2001, after the country suffered extensive damage 
from earthquakes in January and February, 2001. And that status was 
most recently extended on January 7, 2005. Honduran nationals in the 
United States have been sheltered by TPS since January 5, 1999, shortly 
after Hurricane Mitch swept through the area. That status was most 
recently extended on November 3, 2004. It is absolutely essential that 
members of violent alien gangs not be able to exploit natural disasters 
in their home country in order to continue to prey upon American 
society. H.R. 2933 will remove that possibility.

                     CONSTITUTIONALITY OF H.R. 2933

    H.R. 2933 rightly makes membership in a criminal street gang a 
basis for inadmissibility or removal. This is entirely within the 
constitutional authority of Congress. The most likely challenge to such 
an act would claim that membership in a such a gang is protected by the 
First Amendment's protection of ``the right of the people peaceably to 
assemble.'' Such a challenge would fail, for two reasons. First, the 
protections of the First Amendment do not apply to violent activity. 
Even the most expansive judicial iteration of the right to assemble, 
that of the Supreme Court in NAACP v. Claiborne Hardware Co., 458 U.S. 
886 (1982), stated clearly that associational rights do not extend to 
violent activity: ``The First Amendment does not protect violence. 
`Certainly violence has no sanctuary in the First Amendment, and the 
use of weapons, gunpowder, and gasoline may not constitutionally 
masquerade under the guise of ``advocacy.' '' Id. at 916 (quoting 
Samuels v. Mackell, 401 U.S. 66, 75 (1971) (Douglas, J., concurring)). 
Second, there must be an advocacy or speech element in the group's 
activities. It would be absurd to suggest that alien gangs existing 
solely to further criminal activity, are akin to the civil rights 
organizations considered by the Court in Claiborne Hardware. They do 
not carry a message or exercise speech rights in any constitutionally 
meaningful sense. Plainly, a challenge to H.R. 2933 based on an 
associational rights claim would be the longest of long shots, with no 
real basis in law.

                            CIVIL FORFEITURE

    Although I am strongly supportive of H.R. 2933, I do believe that 
it could be substantially improved by this committee. I have submitted 
amendatory language to committee staff that would make a massive 
difference in its effectiveness. As it stands, H.R. 2933 will remove 
barriers to more effective use of immigration law enforcement against 
members of alien street gangs. However, it does not transform the law 
enforcement landscape fundamentally. If this committee wishes to 
dramatically improve the ability of local law enforcement to deal with 
these criminal predators, there is a means of doing so that has already 
been proven effective in other contexts--civil forfeiture of assets.
    A basic problem with the use of removal proceedings against these 
gang members is that so many of them return to the country with 
impunity after being removed. The immense problem of prior deportees 
returning to the United States can be seen in the thousands upon 
thousands of reinstatements of prior removal orders and encounters of 
prior deportees by federal immigration enforcement officers. It is an 
undeniable fact that many of these career criminals move back and forth 
across our borders with impunity. The threat of being removed again is 
simply no deterrent whatsoever for these individuals.
    Civil forfeiture of assets would change the calculation 
substantially. If an alien gang member knew that there was a high 
probability that law enforcement officers could seize all property used 
in his criminal gang activity, including his automobile, any equipment 
used the commission of his crimes, and the proceeds of his crimes, he 
would have substantial reason to relocate his gang activities outside 
of the United States and remain there. The risk of facing civil 
forfeiture would dramatically increase the cost of returning to the US 
to ``do business.''
    Judges would oversee the forfeiture of assets, applying the 
necessary protections of due process, ensuring that only ``tainted'' 
property is seized, and ensuring that the requisite connection with 
criminal gang activity is established. For two decades, the courts of 
the United States have reviewed the civil forfeiture provisions of U.S. 
law dealing with drug trafficking, and have repeatedly held these 
provisions to be constitutional, while delineating the specific 
procedural protections that must be provided. The proposed amendments 
that I have submitted to this committee will likewise withstand 
constitutional scrutiny.
    Civil forfeiture of assets has substantially altered the playing 
field in favor of law enforcement in the war against drugs. Through the 
use of civil forfeiture, prosecutors are not only able to incarcerate 
drug dealers, but also able to hobble their operations financially. We 
must similarly change the game in immigration enforcement if we are to 
stop criminal gang members from entering and reentering the United 
States with impunity. Such aliens not only have no right to prey upon 
our society, they have no right to the proceeds of their violent and 
destructive activity.

                               CONCLUSION

    In conclusion, I commend the Members of the Committee for taking up 
this urgent issue. It is quite literally a matter of life and death. 
The bloodshed brought by alien gangs to the streets of our country must 
be met with every available law enforcement tool. I urge you to 
recommend H.R. 2933 favorably, and I strongly suggest that you augment 
its effect by including civil forfeiture provisions.

    Mr. Gohmert. Mr. Hethmon, you have 5 minutes.

TESTIMONY OF MICHAEL M. HETHMON, STAFF COUNSEL, FEDERATION FOR 
                  AMERICAN IMMIGRATION REFORM

    Mr. Hethmon. Mr. Chairman, thank you for the opportunity to 
present the views of FAIR in support of H.R. 2933.
    In assessing legislation like this, FAIR looks first to see 
whether the proposed bill represents reform in the national 
interest, which is expressed in the 7 principles for 
comprehensive reform, which are attached to our statement. We 
look also to see whether the bill meets a genuine unmet need in 
existing law, and third, we look carefully at the effectiveness 
of the solution within the context of existing restraints that 
have been imposed by Congress, the budget program integration.
    And, Mr. Chairman, our members around the Nation commend 
the sponsors for this bill for their focus on finding solutions 
to the alien criminal gang problem in this country.
    And while H.R. 2933 is not a comprehensive solution, it is 
demonstrably in our national interest, it responds to a 
dangerous vulnerability in public safety, and can be feasibly 
integrated into our existing immigration enforcement scheme.
    Previous hearings and previous witnesses have spoken on the 
impact and scope of the criminal alien gang problem, and I will 
not touch on this at this point. However, I would say the role 
of foreigners in the rise of criminal gangs is undeniable, and 
any solution that does not closely integrate effective 
immigration law enforcement will fail.
    H.R. 2933 would adapt the regulatory scheme that has been 
created by Congress and found to be effective in identifying, 
detaining and removing aliens who are terrorists or supporters 
of terrorist activities, and apply it to the functionally 
related gang activities of narco-terrorism, human trafficking 
and the collateral crimes of violence.
    The bill will, in our view, for the first time allow the 
removal of alien street gang members who otherwise would have 
status to remain in the United States either as lawful 
permanent residents or non-immigrant visa holders. Aliens 
illegally in the United States, who are already removable, 
could also be charged under the new section so as to limit 
their eligibility for relief from removal.
    Now, the need for this kind of legislative approach, in our 
view, is regrettable but compelling, and I say regrettable 
because we believe that the broad factors that account for most 
of the appalling growth in alien criminal gang activity in this 
country all arise from the failure of Congress over more than a 
generation to control illegal immigration.
    The three factors I would mention at this time would be the 
failure to require and support effective border control and 
interior enforcement. A second factor would be the apparent 
willingness of Congress, going back to the 1970's, to use 
refugee policy as an expedient way to deal with the upheavals 
that have followed our intervention in third world countries, 
notably in Central America. And finally, the third factor would 
be the blowback from the failure of Congress to protect the 
American workplace from illegal employment.
    Mr. Chairman, we view this tough legislative approach that 
has been taken by Representative Forbes to be necessary and 
compelling. Previous approaches in the previous situation show 
massive failure, but unfortunately, we cannot turn the clock 
back. Although H.R. 2933 takes, we believe, a pragmatic 
approach to this problem, FAIR also believes that the existing 
antiterrorist provisions on which this legislation has been 
modeled, responsibly--have been responsibly adapted--excuse 
me--to avoid civil liberties concerns.
    For example, we would note that the authority of DHS in the 
existing legislation to consider classified information to 
designate a foreign terrorist organization under existing law 
is not present in the procedures for designation of a criminal 
street gang.
    Now, in assessing the potential for detention and removal 
bills, FAIR relies often upon the experience of our members who 
work in the immigration law field, and the feedback on this 
bill has been very positive. They tell us that H.R. 2933 
supports local law enforcement by closing loopholes and 
providing new avenues to combat the problem.
    They believe it will be an effective weapon against drug 
cartel members or affiliates who are foreign nationals, but who 
would not otherwise be removable from the United States. They 
believe the new grounds of removability could be put to 
immediate use to break up violent street gangs that work as 
foot soldiers, hit-men or supporters, and who are vital links 
in the food chain of trafficking organizations.
    Our members would like to make a technical suggestion they 
believe could increase the effectiveness of this legislation. 
They believe that the threat caused by alien gang members 
within the U.S. is so grave that it would be appropriate to add 
the grounds of inadmissibility in H.R. 2933 to the expedited 
removal process in the Immigration Act Section 235(c)(1).
    We have also included as an attachment to our testimony, a 
list of additional loopholes that the Committee might want to 
consider in making this approach more effective.
    [The prepared statement of Mr. Hethmon follows:]

              Prepared Statement of Michael Hethmon, Esq.



    Mr. Gohmert. Thank you, Mr. Hethmon.
    Mr. Cole, you have 5 minutes. Let's go ahead and take your 
testimony.

              TESTIMONY OF DAVID COLE, PROFESSOR, 
                GEORGETOWN UNIVERSITY LAW SCHOOL

    Mr. Cole. Thank you, Mr. Chairman. I'd ask that my written 
remarks be incorporated in the record.
    Mr. Gohmert. That's been granted.
    Mr. Cole. I want to make four points about this bill. 
First, that it imposes guilt by association, resurrecting the 
worst tactics of the McCarthy era, targeting people not for 
their own individual culpable conduct, but for their mere 
association with groups that we have blacklisted.
    Second, that the procedure by which we blacklist--we would 
blacklist groups under this bill--is on its face 
unconstitutional and in conflict with governing decisions of 
the D.C. Circuit.
    Third, that the bill radically expands the grounds for 
deportation for crimes from aggravated felonies, which is 
already a very broad concept, to essentially minor misdemeanor 
assault offenses that merit no jail time whatsoever. 
Nonetheless, they would be deportable offenses under the 
statute.
    And fourth, that this statute, by barring asylum and 
withholding to people based solely on their association in 
blacklisted groups, violates our obligations under 
international law not to send people back to countries where 
they're going to be persecuted simply because we find that 
they're a member of a group we don't like. It's one thing to 
send someone back to a country to be persecuted where they have 
been found to be a serious criminal or a terrorist, it's 
another thing to send someone back to a country where they're 
going to be persecuted simply because we find that they're a 
member of a group that we don't like, without any showing that 
they've engaged in any criminal activity.
    Terrorism, crime, gang crime, violent crime, they're all 
problems, they're all serious problems that we need to respond 
to, but the challenge here, as with the challenge with respect 
to terrorism, is whether we can respond while remaining true to 
the principles upon which this country was founded. 
Unfortunately, this bill fails in remaining true to those 
principles. So let me talk about those four points.
    First, it imposes guilt by association. It is already a 
deportable offense for a gang member, or indeed any other 
foreign national who is convicted of an aggravated felony, a 
very broad term that as this Committee no doubt knows, includes 
misdemeanors, misdemeanors, includes shoplifting crimes and the 
like. What this bill does is make people deportable who have 
never committed a crime in their life, who are not suspected of 
committing a crime, who are merely deemed by the Department of 
Homeland Security to be a member of a group which is deemed by 
the Attorney General to be a bad group. Bad groups have bad 
people in them. They also have good people in them. This bill 
makes no distinction between the two. It deports anyone who is 
found to be a member of any group which has been blacklisted by 
the Attorney General. That's guilt by association.
    If you took the McCarthy era laws that this Congress 
repealed in 1990, and you just substitute ``criminal street 
gang'' for ``communist,'' that's what this bill would be. It 
essentially takes that approach where we punished people not 
for their own individual culpable conduct, but for their 
association with groups that we didn't like, and rendered them 
deportable. That's what this bill does, and it violates the 
first amendment right of association, and violates the fifth 
amendment right of an individual to be treated as an individual 
and not treated as culpable based on your associations.
    Secondly, the designation process is patently 
unconstitutional. It provides no notice to the group that is 
designated. It provides no opportunity to the group that's 
designated to provide any evidence in its defense. It doesn't 
even allow the group to approach the Attorney General about its 
designation until 2 years after it's been designated.
    And although it gives the gang the right to go to court to 
challenge its designation in court, in the D.C. Circuit, it 
doesn't allow the group to provide any evidence in challenging 
its designation. The evidence is solely that which has been 
created in a one-sided administrative process with no notice 
and no opportunity to respond. That very process has been held 
unconstitutional by the D.C. Circuit in the National Council of 
Resistance of Iran case, in the context of foreign terrorist 
organizations with presence here in the United States. A 
fortiori, it violates the Constitution with respect to domestic 
groups of three or more individuals who happened to have 
committed two or more gang crimes at some point in their 
history.
    Third, it radically expands the grounds for inadmissibility 
and deportability far beyond your aggravated felonies, to--as I 
point out in my testimony--misdemeanor assault offenses that 
are found by the criminal justice system to merit no jail time 
whatsoever. We would turn those into deportable offenses that 
not only render the person deportable, but deny him any relief 
whatsoever.
    I'll conclude there.
    [The prepared statement of Mr. Cole follows:]

                    Prepared Statement of David Cole




    Mr. Gohmert. Thank you, Mr. Cole. Your 5 minutes expired.
    That last buzzer was indicating we have 10 minutes left to 
go vote, and then I'm informed that we'll have another 15-
minute vote after that, followed by another 5-minute vote. So 
we'll hopefully be able to reconvene perhaps as early as 4:20 
back here. I'm sorry for the delay.
    Mr. Berman. Mr. Chairman?
    Mr. Gohmert. Yes, Mr. Berman?
    Mr. Berman. Could I just ask you a question?
    Mr. Gohmert. Surely.
    Mr. Berman. I'm curious in the context of Congressman 
Forbes' testimony and then Professor Cole's testimony, would it 
be possible before we marked up a bill like this to submit to 
the Justice Department a question about--just the Department's 
opinion about the constitutionality of some of these 
provisions?
    Mr. Gohmert. It certainly sounds reasonable.
    Mr. Berman. Thank you.
    Mr. Gohmert. So we will--I'll tell you, let me just ask one 
question, one question quickly and reserve the balance of my 
time.
    Mr. Cole, you're obviously a constitutional scholar. Is 
there a constitutional right to be in this country in violation 
of the United States immigration laws?
    Mr. Cole. Well, I think the answer to that is it depends on 
whether the immigration laws are themselves constitutional. So, 
for example, if we make----
    Mr. Gohmert. That's all right. That answered my question.
    Mr. Cole. Okay.
    Mr. Gohmert. Your answer basically, it depends.
    All right, thank you. We will be in recess until 4:20 
unless the vote takes longer. Thank you very much.
    [Recess.]
    Mr. Gohmert. I thank you for your patience everyone. We 
do--for the record, the four witnesses who were previously 
sworn are back here for the hearing, and we do have the 
gentlelady from Texas, Ms. Jackson Lee. We also have Mr. 
Inglis. Anyone else? No, that's it for now, okay.
    So we will resume the hearing, and at this time the Chair 
recognizes the gentlelady from Texas, Ms. Jackson Lee, for 5 
minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I think we started out by suggesting that we all are on 
common ground in protecting the homeland, and particularly 
weeding out terrorists or violent gangs in a manner that would 
be protecting of the homeland, but I think we also realize that 
compliance with constitutional provisions is warranted as well. 
I might add that I believe this bill covers individuals in a 
legal permanent status, means that they are not at citizenship 
level but they also are able to offer their lives in the United 
States military in Iraq and Afghanistan and other places around 
the world.
    So I really strongly feel that we've got to find, one, an 
answer to Mr. Berman's question, which is what the Justice 
Department might--as to how they might assess this legislation, 
and I am very grateful the Chairman believes that this would be 
an appropriate review process, is to get an assessment analysis 
by the Department of Justice.
    Let me ask Mr.--Congressman Forbes this question regarding 
the point that I made earlier. I think you said something to 
the effect that intervention and prevention are meritorious, at 
least as a separate legislative initiative. You indicated if 
you join a violent criminal gang that you should lose the right 
to stay in the United States. I indicated to you that MS-13, 
one of the gangs that might happen to be on the list, is 
already recruiting in our elementary schools, such that some 
elementary school child might be vulnerable enough to join or 
to associate with a gang with the name of MS-13. Would you be 
willing to modify your bill to provide an exception for 
children who have not engaged in criminal activity, and only by 
the sheer existence of the group in their neighborhood, 
possibly named Ms-13, and their foolishness in associating 
themselves with that group, might be caught up in your 
legislation if it was passed?
    Mr. Forbes. Well, first of all, Congresswoman, I would not 
be so presumptuous as to say what the Committee may or may not 
pass in an amendment, and if they saw fit to put that amendment 
in there and it passed, certainly I would still support the 
bill.
    I think one of the things that we need to recognize though 
is that as I've traveled across the country and I've looked at 
phone calls that we've had and letters that we've had across 
the country from people in various groups that have asked us to 
support this legislation, never, never once have I heard anyone 
say that we have been overzealous in the enforcement of our 
immigration laws. In fact, it has been just the opposite.
    I think with this legislation what we find Homeland 
Security doing is they would never be going after the second 
grader or the third grader. The people they would be going 
after would be those gang members that they feel are dangerous 
to the community and are here, that should be deported. 
Certainly, I don't think anyone in here is talking about 
getting a second grader or a third grader. However, I will tell 
you, as you move into teenagers, especially as we talked about 
in our previous bill, one of the things these gang leaders do 
very, very well is work the system, and they will end up 
getting teenagers that are doing their actions for them if they 
think there's a loophole there, but I would----
    Ms. Jackson Lee. I don't have too much time. I appreciate 
the gentleman--I'd appreciate the gentleman working with us on 
the idea of the number of young people that could be caught up 
in this fishnet.
    Mr. Cole, I'd like to yield the rest of my time to you 
because I don't believe you sufficiently finished your analysis 
on the potential unconstitutionality of this effort. You know, 
we run up against those who are law enforcement, who think that 
we are against them, and I will put my record up against anyone 
in terms of support for law enforcement around this Nation. I 
think all of us believe in a Nation of laws. I have always said 
that we are a Nation of laws and that we're a Nation of 
immigrants. I also said that immigration does not equate to 
terrorism.
    Help us understand that the wide net of this legislation 
may in fact also pull in citizens, if that is the case. But if 
that is not the case, then focus specifically on some of the 
vulnerabilities of this legislation in terms of relief, 
designation, inability to protest legislation, and the point 
that you made, which I thought was very valid, that you have no 
provisions in there to defend yourself, meaning that you may go 
into court, but you can provide no evidence to suggest that you 
are not or should not be on the list. And I thank you very much 
for your presentation.
    Mr. Cole. Thank you. Well, I think the place to start 
really is that there's nobody from ICE here saying, ``We don't 
have sufficient resources to go after gang members.'' Mr. 
Garcia testified before this Committee a short while ago, and 
was very proud about talking about ICE's efforts to go after 
gang members, and did not say, ``We don't have sufficient 
authority. We can't do it. We need you to make guilt by 
association the modus operandi of the day. We need you to 
return to the days of the McCarran-Walter Act.'' No. He said, 
``We've got resources. We're doing it. It's an ongoing 
process.'' So why the rush to infringe on first amendment 
rights?
    Secondly, it seems to me that you've already got tremendous 
resources under immigration law. Any gang member who's out of 
status can be deported. Any gang member who commits an 
aggravated felony can be deported. One of my colleagues on the 
panel said that one-half to two-thirds of the members of MS-13 
are here illegally under our current immigration law. That 
means that one-half to two-thirds can be deported. It's not a 
question of the law not being sufficient, it's a question of 
resources, it's a question of priorities.
    And so this it seems to me, very premature, totally 
unnecessary to deal with the problem, and raise exactly the 
problem that you identified, which is that it sweeps up 
innocent people who have committed no crime, who are not in 
violation of their immigration status, who are 10-years-old, 
who are permanent residents and who have just joined a group 
because, you know, in their community that's the socially--
that's what you do, but have never intended nor engaged in any 
kind of illegal activity.
    Those people have no right to defend by saying that they 
engaged in no criminal activity. They have no right to defend 
by saying the group they joined is not in fact a gang. The gang 
has no right to tell the Attorney General that they're not a 
gang. I mean this bill simply ignores the distinction between 
guilt and innocence.
    Ms. Jackson Lee. I thank the gentleman.
    Mr. Hostettler [presiding]. I thank the gentlelady, and I 
thank the Subcommittee for your indulgence. I apologize to the 
members of the panel. Thank you for being here today. I will 
move straight into questions.
    Professor Kobach, in his testimony, Professor Cole states 
that H.R. 2933 would be unconstitutional because of 
similarities to foreign terrorist organization provisions and 
other laws. Do you agree?
    Mr. Kobach. No, I do not agree. And if I may divide my 
answer into two parts. Professor Cole asserts that there are 
basically two constitutional problems. He says first there's a 
right of association problem with this statute, the proposed 
statute, and also that there's a due process problem.
    To look at the right of association claim that Professor 
Cole makes, I think it is a--it is fair to say that it is a 
long shot at best. Such a challenge fails for two reasons. The 
first is that the protections of the first amendment right to 
peaceably assemble have to be--can only be triggered when there 
is a speech or an expressive content in the association's 
organization. Even the most expansive judicial iteration of 
that, in the Claiborne case, stated very clearly that the 
protections of the first amendment right to assemble do not 
extend to violent activity. If I may quote from the Court, 
``The first amendment does not protect violence. Certainly 
violence has no sanctuary in the first amendment, and the use 
of weapons, gunpowder and gasoline may not constitutionally 
masquerade under the guise of advocacy.''
    Second, to trigger the first amendment associational 
rights, there must be some speech element in the group's 
activities; and I think it's absurd to suggest that these alien 
street gangs are engaged in political advocacy or social 
advocacy or any other kind of advocacy. They are not exercising 
speech rights in any meaningful sense.
    Let's imagine that there was a gang that did have both an 
illegal activity--a criminal activity component--and an 
expressive activity component. The Supreme Court has clearly 
held that membership even in a dual-purpose organization like 
that is not only a basis for removal, as the Supreme Court held 
in Galvan, but it's also a basis for criminal prosecution, 
which, the statute contains--this proposed statute contains 
none of--in the Scales case.
    Now, basically, there's only two types of constitutional 
association claims you can bring: an expressive one under the 
right to assemble, as I've just described, and also one under 
the right to intimate association, which is found in the 
fourteenth amendment, and was expanded upon in Griswold and in 
Roberts v. Jaycees. This clearly is not of that category 
either. So there's no first amendment or associational problem 
with the statute.
    Getting to his due process claim, Professor Cole cites the 
D.C. Circuit case of National Council of Resistance of Iran in 
support of his contention that there would need to be greater 
notice provisions and due process provisions for the 
designation of these alien gangs. However, he neglects to 
mention an important distinction between H.R. 2933 and the 
law--the Antiterrorism Effective Death Penalty Act--that was at 
issue in that case. And that is, that that act allowed the 
immediate freezing of assets of an organization upon 
designation. And in the case the Circuit Court for the District 
of Columbia specifically and explicitly tied its holding to 
the, ``the invasion of fifth amendment protected property 
rights,'' which Galvan v. Press entitles the plaintiffs to--
said that the plaintiffs are entitled to the due process of law 
if property rights are immediately triggered by the or taken 
away by such designation.
    There is no such invasion of property rights here. So while 
it is certainly interesting to imagine what National Council of 
Resistance of Iran might have said if it was based on something 
other than the seizure of assets. That's largely irrelevant to 
2933. So I don't see any due process problem with this case.
    Now, if, presumably, Professor Cole and others out there 
might try to persuade the D.C. Circuit some day to expand its 
holding in that case to other areas where the violation was of 
something other than property rights, the Committee may wish to 
consider a few minor amendments that might delay the 
implementation or the effective date of the statute to allow a 
slight notice provision. Those changes could be easily made, 
but as it stands now it is not unconstitutional; and there is 
no first amendment violation or due process violation in it.
    Mr. Hostettler. Thank you, Professor, very much.
    I'll yield back the balance of my time, and yield to the 
gentleman from Michigan, Mr. Conyers, for 5 minutes, the 
Ranking Member of the Full Committee.
    Mr. Conyers. Thank you, Mr. Chairman.
    I thank all the witnesses for their testimony.
    I just wanted to pick up on our colleague, Mr. Forbes' 
point, that we have no way to prevent acknowledged gang members 
from entering the country, even if they had a stamp on their 
hand, that we wouldn't be able to stop them.
    But I've got a section here, 8 USC 1182, section 212, that 
says: Classes of aliens ineligible for visas or admissions, and 
then: ``Security and related grounds. In general, any alien who 
a consular officer or the Attorney General knows or has 
reasonable ground to believe seeks to enter the United States 
to engage solely, principally or incidently in activities that 
violate the laws and evade the laws, or any other lawful 
activity is excludable.'' Do you agree?
    Mr. Forbes. Do I agree with your first statement that my 
testimony said that there was no way of keeping gang members 
out, or do I agree with the statement that you just read that 
the law----
    Mr. Conyers. The statement that I just read.
    Mr. Forbes. The statement that you read is correct, but my 
testimony was not the way you stated it. What I said in my 
testimony--and I'll restate it----
    Mr. Conyers. No, you don't have to. If you agree with this, 
I'll get corrected later on.
    All right, let me just move on. You know what the 5-minute 
rule is like.
    What I'm troubled by is the fact that we have so many 
problems with guilt by association--well, let me just start 
here, Professor Cole. We might be in this bill imposing guilt 
by association on individuals who never commit or support any 
criminal activity. Do you think that's possible in this bill, 
Mr. Forbes, Congressman Forbes?
    Mr. Forbes. I would say, Mr. Conyers, that one of the 
things that I disagree with Mr. Cole on, on page 5 of his 
testimony is he does not----
    Mr. Conyers. No, no, just on this point alone.
    Mr. Forbes. I believe that if it's a member of al-Qaeda 
here, that we want those individuals out of the country whether 
we can prove that they've committed a criminal act or not. I 
believe if there's a member of a violent criminal gang here, we 
want them out of the country whether we can prove that they've 
committed a crime or not because we want to protect victims 
from occurring.
    Mr. Conyers. Okay. Thank you, sir.
    What do you say to that, Mr. Hethmon? Do we use guilt by 
association in this bill? And that's what's worrying me.
    Mr. Hethmon. I think that the terms ``guilt'' and 
``innocence,'' they don't fit in this context at all. Remember, 
we're talking about immigration law, where detention and 
removal are not criminal punishments, and whether someone is 
guilty or innocent really isn't the issue. Constitutionally, 
the----
    Mr. Conyers. In other words, that if someone hasn't 
committed any criminal activity we could deport them under the 
provisions of this law and that would not be too troublesome to 
you?
    Mr. Hethmon. Well, I think the vast majority of people who 
are deported from the United States are not done on the basis 
of a criminal conviction.
    Mr. Conyers. No, but----
    Mr. Hethmon. That's in an essential----
    Mr. Conyers. --but I'm talking about this bill.
    Mr. Hethmon. --aspect of immigration law.
    Mr. Conyers. Yeah. I'm talking about this bill. Mr. Cole, 
Professor Cole's suggesting that this is what would happen.
    Mr. Hethmon. Well, he's posing a hypothetical which really 
is not relevant to immigration law.
    Mr. Conyers. Why would you put a hypothetical in here, 
Professor Cole, and we're studying hard case law? Please.
    Mr. Cole. I don't consider this to be a law school exam. I 
consider this to be real life, and I think that this bill is 
meant to have effect on people with real lives. And as written, 
it makes any person who's ever been associated with any group 
that the Attorney General decides to put on a blacklist through 
a process that affords no opportunity to challenge it, 
automatically subject to mandatory detention, deportation and 
barred from any form of relief. And that concerns me, not as a 
hypothetical. That concerns me because it seems to me it's 
Congress's obligation to abide by the terms of the 
Constitution, abide by principles like individual culpability, 
abide by principles like due process, and deal with real 
problems like violent crime by targeting violent crime and 
violent criminals, and not by targeting people who have engaged 
in no criminal activity whatsoever. And that's where this bill 
goes wrong.
    Mr. Hostettler. The gentleman's time has expired.
    Mr. Conyers. Thank you.
    Mr. Hostettler. And to make a correction for Mr. Cole. You 
said ``any person that has associated can be subject to 
deportation.'' You mean a non-citizen, correct?
    Mr. Cole. Of course. This is an immigration bill, which is 
what makes it easier for Congress to disregard the rights of 
those who are affected because they're not people who vote, but 
it's--nonetheless, they are, as the Supreme Court has reminded 
us very recently, they are fully protected by the first and 
fifth amendments to the Constitution the same way that U.S. 
citizens are, and it is our obligation to protect their rights 
as much as it is to protect the rights of our sons and 
daughters.
    Mr. Hostettler. But the categorization as ``any person.''
    Mr. Cole. It goes without saying, this is an immigration 
bill. It applies to foreign nationals only.
    Mr. Hostettler. Well, if it goes without saying then it is 
said that any person can be deported, which any person includes 
citizens. And so----
    Mr. Cole. Right. And in this context where we're discussing 
an immigration bill, I apologize, Mr. Chairman, but if I use 
the term ``person'' to describe a foreign national 
occasionally, you can deem it to mean foreign national.
    Mr. Hostettler. Thank you.
    The Chair recognizes the gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    As I heard the litany of things that we should be abiding 
by, abide by the Constitution, abide by this law, abide by that 
law, I can't help but think shouldn't we force people for a 
change to abide by the immigration laws that we have? And 
that's a rhetorical question. It just seemed to be begged by 
the litany of abidings that were offered.
    And I guess from my background as a judge and having seen 
violent gang members prosecuted in my court for murder, for 
some horrible actions, and having seen issues come to bear 
about whether or not individuals in the gang did more than just 
stand there and watch a poor Hispanic young man be brutally 
murdered. Did they aid or abet? Is there a criminal offense 
there, or is there some horrible thing that would be in place 
by saying guilt by association. Well, they can't be criminally 
guilty by association. There has to be more than that. There 
has to be some overt action.
    But when it comes to abiding by the laws of immigration in 
this country, it just seems to me that it's time to enforce the 
laws, and if the laws are going to be there, they need to be 
enforced, and if they're not going to be enforced, let's get 
rid of them, let's throw the doors open and all of us stand in 
2-hour lines to get in anywhere we want to go including 
flights. But it seems to me that until we start enforcing the 
borders, the immigration laws, that we're going to lose more 
and more of our rights in this country, more and more of our 
rights to avoid being subjected to searches as we get on 
airplanes or go in public buildings like this one.
    The more we fail and refuse to defend ourselves at our 
borders, the more rights we're going to give up of the people, 
and it's time to enforce the immigration laws.
    And it seems to me, Mr. Forbes, that this bill would have 
helped immensely those people that stood by and couldn't be 
proved beyond a reasonable doubt that they aided or abetted in 
murder and torture, but just were part of it. The association 
alone should be sufficient to say, ``You're here illegally. 
It's time to leave.'' Is that your feeling?
    Mr. Forbes. Yes, sir, Mr. Gohmert. And you know, it was 
stated earlier this is not a law school exam, but words do 
matter. That's what we're here for. When you cite testimony 
that somebody has made, it's important that you cite that 
testimony accurately. When we cite cases, it's important you 
cite the facts that are in the case. When you use the words 
guilt by association, as we've mentioned, we're not talking 
about guilt. We're talking about the immigration laws of this 
country which this body has a right to determine the people 
that are going to come into this country and the people that 
are not going to come into this country.
    We had the question posed to us by Mr. Berman, can we get 
an opinion from Department of Justice? Just for the record, the 
Chief Legal and Policy Advisor on Immigration Law, Border 
Security and the Immigration Court System to the Attorney 
General is sitting right here. He said it is constitutional.
    Mr. Cole made a statement just a few minutes ago that he 
said in my testimony that I said a half to two-thirds of MS-13 
were here illegally. Therefore, we can go after them. That's 
just not accurate, because what Mr. Cole did not tell you is 
that TPS was granted in 2001 to El Salvador. A large portion of 
MS-13 members are here from El Salvador. When we granted that 
blanket protection, we essentially encapsulated those violent 
criminal gang members who could stand out on the street today, 
be here illegally, be a member of that violent criminal gang, 
and because of temporary protected status, we cannot deport 
them. It's nothing about guilt there. It's a policy decision 
that we can make that says we think we should be able to deport 
them.
    Mr. Gohmert. Thank you.
    And my time is about expired, but I just can't help but go 
back to some of the common sense things my mamma used to say. 
She was a brilliant woman, and a brain tumor took her away too 
early, but it's what a lot of mothers have told their children, 
and that is, be careful with whom you associate, and she did 
say ``with whom'' because she was an English teacher, because 
it matters. And I've had people prosecuted who did end up 
offering some overt aid to a friend who committed a crime, and 
come in over, probably hundreds and hundreds of times I've had 
people say, ``I'm so sorry. I just got in with the wrong crowd 
and got caught up in it.''
    And I'm proud of the bill you're forwarding here, and 
pushing forward, and appreciate the opportunity to participate.
    Mr. Hostettler. I thank the gentleman.
    The Chair recognizes and thanks the members of the panel 
for your participation today on this very important issue. 
Members are advised that they'll have 5 legislative days to 
make additions to the record.
    The business before the Subcommittee being complete, by 
unanimous consent, we are adjourned.
    [Whereupon, at 5:05 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress from the State of Texas, and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims

    The subject of this hearing is, H.R. 2933, the Alien Gang Removal 
Act of 2005 (AGRA), which was introduced by Congressman Forbes on June 
16, 2005.
    We have relied primarily on three basic strategies for dealing with 
the problem of youth gangs: suppression, which has meant longer 
sentences and penalties; intervention, through job training, education, 
and skills development in an attempt to reform gang members; and 
prevention, through school and community-based programs designed to 
reach out to at-risk children before they become involved with gangs.
    The Alien Gang Removal Act presents a new strategy. AGRA would 
attempt to reduce the number of immigrant gang members in the United 
States by changing our immigration laws.
    It would establish three new exclusion grounds. The first would 
make someone inadmissible to the United States for having been deported 
on the basis of criminal street gang participation. Someone who has 
been deported is already inadmissible, regardless of the reason for the 
deportation. Under existing law, however, inadmissibility would only be 
for a five-year period. Under the new provision, inadmissibility would 
be permanent.
    The second would make an alien excludable if the immigration 
inspector has a reasonable ground to believe that the alien is a gang 
member entering to engage in unlawful activity. I am concerned that 
this would lead to profiling and that aliens who have tattoos or other 
indicia of gang membership would be excluded on little more than their 
appearance. Once excluded, they would permanently be barred from 
admission to the United States.
    The third would make someone inadmissible for being a member of 
group or association of three or more individuals that has been 
designated by the Attorney General as a criminal street gang. Another 
provision in AGRA would make membership in a designated criminal street 
gang a deportation ground too.
    Members of designated criminal street gangs also would be 
statutorily ineligible for asylum, withholding of removal, and 
Temporary Protected Status; and they would be subject to the criminal 
alien detention provisions.
    Mai Fernandez was our witness at the April 13, 2005, hearing on 
immigrant gangs. She is the Chief Operations Officer for the Latin 
American Youth Center in the District of Columbia. She works with gang 
members on a daily basis. She explained at the hearing that most youth 
gang members in her community are not criminals. According to Ms. 
Fernandez, ``Joining a gang gives a youth a group of friends to hang 
out with, and a sense of security which they cannot get elsewhere in 
their lives. These kids are not super-predators--they are kids looking 
for a sense of belonging.''
    According to Houston's Anti-Gang Office and Gang Task Force, the 
gang known as ``MS-13'' has been recruiting children from local 
elementary schools. It is a certainty that MS-13 will be on the 
designated list of criminal street gangs if this bill is enacted. Those 
children would then be subject to deportation even if they never 
participate in any criminal activities.
    The procedures for challenging a ``criminal street gang'' 
designation are much too narrowly drawn. Someone wishing to petition 
the Attorney General for review of a designation would have to wait two 
years before filing the petition. Immediate redress would be limited to 
court action, and then only before the U.S. Circuit Court for the 
District of Columbia. Also, judicial review would be based solely upon 
the administrative record. The petition for court review would have to 
be filed within 30 days of the date on which the designation is 
published in the Federal Register.
    Although I understand the desire to remove violent immigrant gang 
members from the United States, this is not the way to do it. The 
provisions in AGRA are not limited to violent gang members. They also 
would apply to gang members who never engage in criminal activity of 
any kind. AGRA would cast a broad net that would ensnare innocent 
children along with the dangerous criminals.
    Thank you.

         Revised Prepared Statement of David Cole, Professor, 
                    Georgetown University Law School




                                 
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