— Rep. John Katko (R-N.Y.), in a Facebook post, June 4, 2019
“This legislation grants smugglers and gang members with green cards and a path to citizenship.”
— Rep. Paul A. Gosar (R-Ariz.), in remarks on the House floor, June 4, 2019
When the House passed the Dream and Promise Act earlier this month, Republicans warned that the bill would give gang members, smugglers and repeat criminal offenders the chance to gain legal residence or citizenship.
Also known as H.R. 6, the Democratic legislation would open up a path to a green card for nearly 2.7 million undocumented immigrants, according to the Migration Policy Institute. The bill covers “dreamers” — a term for undocumented immigrants who were brought to the United States as children — and smaller groups of noncitizens who were eligible for temporary protected status or “deferred enforced departure” before the Trump administration announced it would curb those programs.
The House bill has little chance of passing the Republican-controlled Senate. But it lays down a marker for Democrats, an opening bid for potential bipartisan negotiations.
Would the bill give green cards to gang members, smugglers or people with multiple criminal convictions?
The House passed the Dream and Promise Act in a 237-to-187 vote on June 4, with seven Republicans joining Democrats in support. (Five Democrats and four Republicans did not vote.)
As MPI noted in this analysis, the bill covers “unauthorized immigrants, regardless of age, who entered the United States before age 18 and at least four years before enactment of the legislation, and who have a high school diploma or GED, or are enrolled in a high school, GED program, or an apprenticeship program.”
Gosar and Katko weren’t the only Republicans to raise concerns. “This bill will certainly give green cards to gang members,” Rep. Ken Buck (R-Colo.) said during the floor debate. Rep. Ben Cline (R-Va.) said “H.R. 6 also provides green cards to gang members.”
The claim seems ready-made for the campaign trail, and indeed, Nicole Malliotakis, a Republican state assemblywoman in New York who is challenging Rep. Max Rose (D-N.Y.) next year, said “the bill protects 2.5 million people from deportation including individuals who have multiple DUI convictions, firearm convictions, that are gang members.”
But that’s not where things ended up in the House. After an internal debate among Democrats, and after Republicans unsuccessfully offered an amendment to toughen the bill, H.R. 6 ended up with various measures that exclude people who have broken the law.
The bill says it doesn’t grant protections to immigrants convicted of a felony, unless it was an immigration-status offense. The legislation also bars immigrants convicted of three or more misdemeanors, unless they were low-level marijuana offenses or nonviolent civil disobedience. The bill says anyone applying for legal status would have to pass a background check.
In addition, H.R. 6 adopts existing prohibitions in federal immigration law. The Immigration and Nationality Act bars immigrants seeking admission for the following reasons, all of which are incorporated in H.R. 6: A conviction for “a crime involving moral turpitude,” which could include rape, forgery, robbery, bribery and counterfeiting. Human trafficking, prostitution or money laundering. A violation of any state, federal or foreign law or regulation relating to controlled substances. Convictions for two or more offenses of any kind, if the aggregate sentence was five years or more. If a consular officer or the U.S. attorney general knows or has reason to believe the immigrant has trafficked drugs or assisted drug-traffickers in some way. If a consular officer or the attorney general knows or has reason to believe the immigrant is coming to engage in espionage, corporate espionage, sabotage, an overthrow of the government or “any other unlawful activity.” If U.S. officials know or have reason to believe the immigrant has terrorist ties.
The House bill says it does not cover some domestic-violence offenders, and it adopts paragraphs 1, 6E, 6G, 8 and 10 of section 212(a) of the INA, which means some immigrants also could be disqualified for smuggling, international child abduction, health-related grounds, abusing student visas, polygamy, unlawful voting, or other reasons listed in the INA.
There’s more: H.R. 6 would let the Homeland Security secretary conduct a “secondary review” of any immigrant’s application and deny legal status based on public safety or national security reasons. The bill says the secretary would have to follow “clear and convincing evidence, which shall include credible law enforcement information.” (Caveat: Low-level marijuana and traffic offenses and nonviolent civil disobedience wouldn’t count as reasons for the secretary to deny someone legal status.)
In other words, the DHS secretary would have broad authority over who gets a green card. An immigrant convicted of a single misdemeanor with a sentence of more than 30 days could be barred from obtaining legal status by the DHS secretary. Similarly, the secretary could bar an immigrant who “has been adjudicated delinquent in a State or local juvenile court proceeding that resulted in a disposition ordering placement in a secure facility.”
The bill has a short section covering “gang participation.” The Dream and Promise Act says it doesn’t cover immigrants who “knowingly, willfully, and voluntarily participated in offenses committed by a criminal street gang” at any point in the five years before their application for a green card. This provision does not seem to require a conviction of any kind, only proof of participation in a crime gang.
However, the bill also says “allegations of gang membership obtained from a State or Federal in-house or local database, or a network of databases used for the purpose of recording and sharing activities of alleged gang members across law enforcement agencies, shall not establish the participation.”
“The denial provision is written so narrowly that it will almost never exclude gang members,” Rep. Andy Biggs (R-Ariz.) said during the floor debate. “In fact, it actually prohibits the use of gang databases to establish gang participation in order to deny green cards to gang members.”
A Katko aide told us, “Many states and localities use databases to keep track of gang members, so preventing the usage of this information from these databases would make it more difficult to make gang members ineligible for a pathway to citizenship.”
Rep. Zoe Lofgren (D-Calif.), the chair of the House judiciary subcommittee on immigration, said that’s not how the database provision works. The Department of Homeland Security would be able to check state, federal and local databases and networks, but it would not be able to base decisions solely on a database check, she indicated.
“If we had wanted to prevent the Department of Homeland Security from using or referring to gang databases, we would have said so,” Lofgren said on the House floor. “The bill would clearly state that DHS could not use, rely on, or refer to gang databases. That is not what the bill says. The bill says ‘it shall not establish disqualifying gang participation.’ It can be evidence, but it can’t be the establishment of that fact.”
She continued: “Now, why would that be the case? We value our law enforcement community. They keep us safe. They are hard-working. But these databases are populated by people way beyond law enforcement, people in school police, school security. They can result in people being mistakenly tagged as gang members when they are not. I will give an example. There was an audit done of California’s gang database, CalGang. When the auditors went through, they found out there were 42 individuals who were under the age of 1 year old who had allegedly self-reported that they were part of a gang. Obviously, that was incorrect. So we would not want to make that the determining factor.”
DHS officials did not respond to a request for comment on H.R. 6.
(Update, June 18): A GOP aide on the House Judiciary Committee responded to this fact check, arguing that H.R. 6 opens the door to gang members obtaining green cards despite the restrictions in the legislation.
“If gang members have evaded criminal conviction or have only two misdemeanor convictions, the law compels officials to grant them green cards unless two things occur,” the GOP aide said. “First, the DHS secretary must personally review a gang member’s file and then deny the gang member legal status. Second, the federal court, relying on the administrative record, must also agree with that denial. Because H.R. 6 grants the secretary the responsibility of making exceptions to the green card mandate ‘as a matter of non-delegable discretion,’ the secretary alone — without delegating authority to staff — must review and rule on any case in which a gang member remains eligible for a green card under this legislation. A gang member with a DUI and misdemeanor firearms conviction, for instance, would remain eligible for a green card under H.R. 6, and only personal action by the DHS secretary — not members of DHS staff — could deny that criminal a green card.”
The Pinocchio Test
The Dream and Promise Act says it doesn’t give legal status to immigrants who were in criminal street gangs. Any immigrant with a felony conviction is ineligible for the bill’s protections. Those with three or more misdemeanors also are barred. These immigrants would not qualify for legal residence under the bill.
By adopting certain parts of the INA, the bill also excludes immigrants convicted of specific offenses that could be associated with gang activity or organized crime, such as drug trafficking, smuggling, human trafficking, prostitution and money laundering. Furthermore, the legislation gives broad discretion to the DHS secretary to deny immigrants deemed a threat to national security or public safety.
Reprieves appear in the bill for immigrants convicted of low-level marijuana and traffic offenses and civil disobedience, but these provisions hardly open the door to gang members or hardened criminals.
Some Republicans make a plausible argument that because the bill limits DHS’s use of gang databases, some gang members might walk between the raindrops and make out with green cards. We wouldn’t be giving Pinocchios for that claim. But other Republicans are making sweeping and factually flawed claims that H.R. 6 would give legal status to gang members and smugglers. We give them Three Pinocchios.
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