700x394_D.Hudson_Col_4.24.20

Federal Appeals Court Says Man’s Gang Affiliations Relevant to His Immigration Status

The Board of Immigration Appeals did not violate the First Amendment rights of an individual when it considered his gang membership, a federal appeals court has ruled. The appeals court reasoned that such associational evidence can show that a person represents a danger to society.

Delroy Ricardo Toomer, a native of Jamaica, entered the United States lawfully in 2011 with a visa. However, he overstayed his visa. The Department of Homeland Security (DHS) issued a Notice to Appear, charging him as removable from the United States.

An immigration judge agreed with the government but released Toomer on bond. However, while released, Toomer was convicted of carrying an unlicensed firearm. DHS argued that the firearm conviction was additional grounds to remove Toomer and the immigration judge agreed.

Toomer then applied to change his immigration status to that of a lawful permanent resident. An immigration judge determined that Toomer met the statutory requirements for the change but concluded that Toomer was not entitled to the change in status because of “many negative factors that weigh against him.” These negative factors included gang affiliations, drug trafficking, domestic violence incidents and the firearm conviction.

Toomer then appealed to the Board of Immigration Appeals, which affirmed the immigration judge. Toomer then appealed to the U.S. Court of Appeals for the Third Circuit. However, the appeals court affirmed the Board of Immigration Appeals in its April 17, 2020, decision in Toomer v. Attorney General of the United States.

In his appeal, Toomer argued that the Board of Immigration Appeals violated the First Amendment when it considered his alleged gang affiliation. The Third Circuit court relied on the U.S. Supreme Court’s decision in Dawson v. Delaware (1992) to rule against Toomer. In Dawson, the high court ruled that a lower court had violated the First Amendment rights of a defendant when it considered his membership in the Aryan Brotherhood. The court reasoned that the membership in the Aryan Brotherhood was not relevant to the crime for which the defendant was sentenced.

In Dawson, the Supreme Court acknowledged that “the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing.” The court reasoned that such associational evidence might be relevant in showing the future dangerousness of a defendant.

Here, in Toomer’s case, the Third Circuit reasoned that Toomer’s gang affiliation was relevant to the illegal drug trade and thus relevant to his immigration status.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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