Introduction: Immigration Enforcement Priorities — Gang Activity

On November 20, 2014, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a Memorandum detailing new immigration enforcement priorities tiled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants”[PDF version]. Please see our full article on the Memorandum to learn about the subject in more detail [see article]. DHS treats those described in the first enforcement priority level as the most pressing enforcement cases. Persons who are found to be described by priority 1 will be targets for apprehension, detention, and/or removal, and will likely have very few available avenues for relief [see section].

Within the first priority level, the Memorandum includes aliens who were convicted of an offense for which an element was active participation in a criminal street gang. For the definition of a “criminal street gang,” the Memorandum relies in part upon a federal criminal statute found in 18 U.S.C. 521(a). In this article, we will examine the language of the relevant statute to understand cases in which active participation in a criminal street gang may render one a top immigration enforcement priority.

Provision of the Memorandum

The Memorandum describes five situations in which an alien described therein will be a top priority for civil immigration enforcement. In this article, we will focus on subpart (c) of that section. The provision provides that the following will be a top enforcement priority:

[A]liens convicted of an offense for which an element was active participating in a criminal street gang, as defined in 18 U.S.C. 521(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang.

Priority 1(c) contains two distinct provisions. First, an alien is covered if he or she is convicted of an offense that had, as an element, participating in a criminal street gang as defined in 18 U.S.C. 521(a). It is important to note that the conviction need not occur under 18 U.S.C. 521, but rather that it have as an “element” participation in a criminal street gang as defined in 18 U.S.C. 521(a). An “element” means that the active participating in a criminal street gang is something that must have been proven in order for the conviction to have been procured. We discuss the definition found in 18 U.S.C. 521(a) in the next section [see section].

Second, priority 1(c) encompasses aliens who are at least 16 years of age and “who intentionally participated in an organized criminal activity to further the illegal activity of the gang.” Because priority 1(c) is written in the disjunctive (see “or”), this second provision is distinguishable from the first. Notably, this part of priority 1(c) does not rely upon a conviction. Rather, three things must be true for an alien to be covered by the second part of priority 1(c):

1. The alien must have been older than 16 years;
2. The alien must have participated in a criminal street gang; and
3. The alien’s participation in the organized criminal gang must have been to further the illegal activity of the gang.

If any one of the three above points is untrue, the alien may have a case that he or she should not be considered a top priority for civil immigration enforcement. Although a finding that the alien did not participate in an organized criminal gang to further the gang’s activity would not necessarily guarantee that the alien would be safe from enforcement, it would make it more likely that he or she would be able to make a credible argument that he or she is eligible for the exercise of prosecutorial discretion and that there are reasons why such discretion should be exercised favorably.

Definition of “Criminal Street Gang”

The first part of priority 1(c) relies upon 18 U.S.C. 521(a) for the definition of “criminal street gang.” As we have explained, 18 U.S.C. 521 is not an immigration statute, but rather a federal criminal statute. In this sense, the Memorandum expressly relies on it in a way similar to how other provisions of the Immigration and Nationality Act (INA) rely upon provisions contained in different federal criminal statutes. Perhaps the most notable example of this in the INA is the aggravated felony provision found in section 101(a)(43)(F) for a “crime of violence,” which borrows its definition from a provision found in 18 U.S.C. 16. However, in the case of the Memorandum, it does not rely on the part of 18 U.S.C. 521 describing specific violations, but rather part (a), which defines the term “criminal street gang” for the purpose of the federal criminal laws.

18 U.S.C. 521(a) defines a “criminal street gang” as an “ongoing group, club, organization, or association of 5 or more persons”-

A. that has as 1 of its primary purposes the commission of 1 or more of the criminal offenses described in [18 U.S.C. 521(c)];
B. the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in subsection [18 U.S.C. 521(c)]; and
C. the activities of which affect interstate or foreign commerce.

Part (C) listed above serves to narrowly limit the applicability of the definition of “criminal street gang” by requiring that the activities must “affect interstate or foreign commerce.” Referring back to the Memorandum, this is a key reason why the first part of priority 1(c) describing “criminal street gangs” sweeps much less broadly than the second part.

As you may notice, 18 U.S.C. 521(a) cites to 18 U.S.C. 521(c) twice with reference to the types of offenses that a “criminal street gang” engages in. First, the offense must “affect interstate or foreing commerce” and, second, 18 U.S.C. 521(c) limits those offenses ever further to a “continuing series of” one or more of following offenses:

1. A Federal felony involving a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) for which the maximum penalty is not less than 5 years;
2. A Federal felony crime of violence that has as an element the use or attempted use of physical force against the person of another;
3. A conspiracy to commit an offense described in paragraph (1) or (2).

Thus, in effect, in order to be a “criminal street gang,” the group must engage in a continuing series of certain drug offenses or crimes of violence that “affect interstate or foreign commerce”. It is worth noting that, in addition to being a top enforcement priority, an alien who is engaged in such activities would quite likely be inadmissible as an aggravated felon under the INA, which harshly punishes aliens who commit controlled substance violations [see article], controlled substance trafficking violations [see article], and/or crimes of violence.

Conclusion

For good reason, the DHS’s current enforcement priorities seek to focus resources on apprehending, detaining, and removing aliens who participate in dangerous gang activity. However, it is worth noting that the Memorandum specifically and narrowly defines the type of gang activity that would lead to an alien being designated as a priority 1 civil enforcement priority. Although merely arguing successfully that an alien is not in priority 1 by no means guarantees that immigration relief will be available, an alien who is not classified as priority 1 will likely have far more avenues for relief available than otherwise. To learn about the types of available relief, please see our two more comprehensive articles on the Memorandum [see article; article]. It is always important for an alien who is apprehended, detained, and/or charged as deportable to consult with an experienced immigration attorney for a full and individualized case evaluation.