Immigrants, Gangs, and Due Process: Unconstitutional Vagueness in Immigration Law

HANNAH GORDON—Considering the manner in which President Donald J. Trump started off his campaign, it’s no surprise that immigration remains a constantly discussed topic in the news. This summer, we saw many headlines about the administration’s “zero tolerance policy” for people who cross the southern border without visas. Although crossing the border without a visa for the first time is only a misdemeanor, the policy removed prosecutorial discretion and flooded the district courts in border towns. Additionally, the zero-tolerance policy was enforced by separating children from their parents in order to detain the adults.

Most of those who crossed the southern border are asylum-seekers. This means that they have the right, according to both domestic and international law, to prove that they have a well-founded fear of persecution if returned to their homelands. Many families remain separated, and some parents were deported without their children. However, some recent arrivals have been released on recognizance or paroled in while they await their immigration hearings. While the violence of family separation has dominated the news, the Department of Homeland Security is also quietly implementing the impossible standards explained below on those lucky enough to be released on recognizance.

One of the most common stipulations for an Order of Release on Recognizance from the DHS is that the immigrant “[does] not associate with known gang members, criminal associates, or be associated with any such activity.” This condition raises many more questions than it answers. What qualifies as “association?” To whom must the gang member be “known?” To the DHS, or to the immigrant? To both? To anyone? What is a “gang member?” What about a “criminal associate?” And “any such activity” is broad enough to encompass a large range of innocent activity. Ultimately, would a reasonable person know if she is violating the terms of her release? Considering the gravity of the consequences, these are important questions.

In criminal law, this type of stipulation is long-settled as unconstitutionally vague. The seminal 1999 Supreme Court case Chicago v. Morales struck down a city ordinance prohibiting “‘criminal street gang members’ from ‘loitering’ with another with other persons in any public place” (emphasis added). Anyone “loitering” with a person that a police officer reasonably believed to be a gang member, who did not disband when asked, was in violation of the ordinance and could be arrested. The Court found that criminalizing mere association with gang members was so vague that a reasonable person would not know when she was violating the ordinance. How, then, can we expect the same from immigrants?

We need to be able to understand a law in order to be held accountable for breaking it. The Fifth Amendment guarantee that the federal government will not deprive any person of life, liberty, and property without due process of law means that laws that are too vague to understand are unconstitutional. For the purposes of due process, immigration detention is just like any other type of incarceration. Many of the people at issue came to the United States to flee governments unwilling or unable to protect their liberty. When they arrive here, they deserve fair treatment and their day in court.

Release from detention only grants an immigrant permission to remain in the United States while waiting for a hearing on any potential relief. Even for those who are released, immigration court is a labyrinth that they will likely need to navigate on their own. There is no guaranteed right to an attorney during immigration proceedings, despite the fact that asylum cases are, by definition, life-or-death situations. An (unconstitutionally) vague Order of Release on Recognizance is just one of many legal roadblocks that asylum seekers must find their way around in order to avoid being sent back to a country where they fear for their lives.