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Congressman Nadler Statement Against GOP’s “Flatly Unconstitutional” Criminal Alien Gang Member Removal Act

Washington, DC, September 14, 2017

Today, Congressman Jerrold Nadler (D-NY), senior Member of the House Judiciary Committee, spoke out on the House floor against H.R.3697, the Criminal Alien Gang Member Removal Act, an extremely broad bill with serious consequences for many innocent, non-gang affiliated individuals. Under the bill, due process protections are effectively shredded by allowing for the designation of criminal gangs through an unfair and secretive process that provides virtually no notice or meaningful opportunity for individuals to contest such a designation. The House passed the legislation, which skipped the appropriate procedure of going through the House Judiciary Committee, by a vote of 233 to 175.

A copy of Rep. Nadler’s remarks are provided below:

"Mr. Speaker, it has been said about this body that if you invent a nice enough title for a bill it doesn’t matter what you write in the bill because all people know what the title is. This bill is a good example of that. Who is in favor of criminal alien gangs? No one. But this bill has received no committee consideration in which the questions could have been asked and the answers given, to make sure that the bill will do what the sponsors say it does. This legislation wouldn’t provide a decent protections against gang violence. It would shred due process protections and would allow deportations of innocent immigrants based on the flimsiest of evidence.  It would establish a Star Chamber-like process for designating criminal gangs that would provide virtually no opportunity to contest such a designation.  Once a group is designated as a gang, an immigrant who is determined to be a member of that gang—determined under undefined procedures and standards—would be almost assured of being deported, and would be subject to mandatory detention while awaiting removal.

"The procedures under this bill would be laughable if they did not have such deadly consequences for so many innocent people.

"Suppose there are some people in my neighborhood that I think are up to no good.  Maybe I have good evidence that they are committing crimes, or maybe I just don’t like them.  Either way, I submit a tip to Homeland Security that the group is engaged in activity that qualifies as a criminal gang under this bill.  Then, based on undefined and unknown procedures, DHS can designate that group as a criminal gang. In doing so, it would amass some sort of administrative record, which is also completely undefined in the bill, but we know it can include secret evidence.

"No notice would be given to the group that it is under review, and no opportunity would be given to present evidence contesting the designation, no exculpatory evidence. After designation, there is a process for judicial review, but unless the group has a habit of scouring the Federal Register, it will have no idea that it has been labeled a gang and that it needs to go to court in 30 days.  And, that if somehow, the group does learn of its designation, it has just 30 days to contest it and only in the federal Court of Appeals in Washington D.C. That review, however, would be based entirely on the administrative record amassed by the government, the group would have no opportunity to submit evidence to rebut the designation, which renders the entire review process meaningless.  That is not due process under the Constitution; that is the sort of stacked process you would expect in a banana republic or in Russia.

"It gets even worse.  Under this bill, any alien is deportable if he or she is or has been, a member of a designated gang, or has participated in the gang’s activities, knowing that it would further its illegal activity.  But who determines that a person is a member of a gang?  By what procedure?  In what court?  Using what standard?  The bill, given the Goodlatte amendment does not say.

"A person need not have been convicted, or even charged with a crime to be deportable under this bill.  And even when they are in removal proceedings, they would not be permitted to challenge the gang designation that landed them in those proceedings.  Thus, we will have people deported on the basis of an unfair and secret process, with no notice and no meaningful opportunity to contest the basis for their deportation.  That turns due process completely on its head.

"Keeping out members of MS-13 and other deadly gangs is a worthy goal.  But this bill would not do that. It would have disastrous consequences for thousands of people each year, who may or may not be members of a gang and who may or may not have any evidence against them, who will inevitably be caught up in its harsh and overbroad provisions.

"Mr. Speaker, just last week, President Trump upended the lives of 800,000 Dreamers, who now face the possibility of being dragged away from the only country they know.  Our highest priority should be providing these young undocumented Americans the legal status they need to continue serving our nation and being productive members of their communities.  And I noticed that the Speaker has said that, while he supports relief for the Dreamers, that bill has to go through committee, why didn’t this bill have to go through committee?  But, instead, the Republican Majority seeks to distract us from the plight of the Dreamers by returning to its mass deportation agenda, based on the fear and demonization of immigrants.

"This bill brings shame upon this House and this nation’s tradition of due process and fundamental fairness.  I urge my colleagues to reject this unconstitutional—and unconscionable—legislation, and I yield back the balance of my time."

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