While tuned into the heated presidential debate last night, I listened intently as the topic turned to immigration, my area of expertise. As I was listening, my jaw dropped in shock when president Obama used the phrase “gangbangers” to describe those who should be deported. This was apparently a reaction many across America shared, as evident from numerous news articles and blog posts across the internet dedicated to this subject.
However once the shock settled, the attorney within quickly resumed control and I remembered an immigration court case I had written about last year for the UMKC Law Review. Yes people seem to generally agree that “gangbangers” have no place in respectable society. There have been media stories over the years about the terrible acts committed by gangs such as MS-13. However, this case didn’t come to mind because it involved removing the so called gang bangers. Instead I immediately remembered it because it involved letting them in! The case came out of the Seventh Circuit, by Judge Richard Posner. The case made former gang members potentially eligible to receive asylum in the United States and was based upon asylum requirements that a person be persecuted as a member of a group and be unable to change that status or should not be forced to do so. The court argued that former gang membership would be a qualifying group because a person would not be able to leave this category except for having to rejoin the group, which they obviously should not be forced to do. As my article states, this is not quite a black and white issues of bad guy gang members because often times children are forced to join these groups which may complicate the issue further.
Though there are some caveats, opening the doors to allow former gang members into the country does seem contrary to Obama’s plan to remove “gangbangers.” This reminded me of the disconnect that is often present in the government and even within the court system itself. These contradictions often exist because of the independence of judges from the office of the president and the independence of different circuits with their ability to make laws contradictory to those in a neighboring jurisdiction. This lack of uniformity makes immigration a very complicated area of law to navigate and may often decrease the effectiveness of the office of president. Cases such as these should make the listener wary when candidates make promises because there are often other factors may make it difficult for a president to keep all of his campaign promises and courts often check the presidential power or create exceptions.
Unfortunately, despite best intentions, even the president himself may not be able to keep out the gangbangers.
For more information you can access my article Refuge for the Criminal? Exploring the Categorization of Former Gang Members as a Particular Social Group, 79 UMKC L. Rev. 991 (2011) on LexisNexis.