Tattoos have evolved into popular forms of self-expression especially among younger people. However, tattoos sometimes indicate gang affiliations. As law enforcement officials began to understand the relationship of certain tattoos to criminal gangs, consular officers started to pay attention to tattoos for clues to gang affiliations among applicants for visas. Thus, in recent years, there have been reports of immigrant visa denials for applicants with tattoos on suspicions of gang involvement. Let’s examine this ground of inadmissibility.
Under INA 212(a)(3)(A)(ii), an alien, who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the US to engage in any unlawful activity is inadmissible. This means that such alien is disqualified from obtaining a visa or admission into the US.
Under 9 FAM 40.31, Note 5.3, the Department of State (DOS) has determined that inadmissibility under INA 212(a)(3)(A)(ii) may arise from the fact that the applicant is a member of a known criminal organization. DOS first began considering membership in organized crime as a ground of ineligibility in 1965 when membership in the Mafia was considered sufficient basis to find an alien inadmissible under then INA 212(a)(27), the predecessor of INA 212(a)(3)(A)(ii). In 1992, membership in the Chinese Triad became a ground of inadmissibility under INA 212(a)(3)(A)(ii). In 1995, this ground for inadmissibility was extended to cover organized crime groups operating in the former Soviet Union. In 2005, this inadmissibility was again extended to active members of organized Salvadoran street gangs in North America such as the Mara Salvatrucha 13 and 18th Street gangs. In 2011, this inadmissibility was further extended to active members of the Yakuza and the organized biker gangs Hells Angels, Outlaws, Bandidos, and Mongols. Other organized Salvadoran, Honduran, Guatemalan, and Mexican street gangs in North America are also included.
The basis for these determinations of DOS was that these identified groups operated as permanent organized criminal societies. Thus, active membership in these groups could be considered a permanent association with criminal activities. Hence, any travel by such an alien to the US could result in a violation of US law. A finding of active membership in organized criminal societies amounts to a permanent ground of inadmissibility. There is no waiver for this ground.
Under 9 FAM 40.31, Procedural Note 1.3, DOS provided guidelines for determining whether a visa applicant is a member of an organized crime group. The relevant factors to consider include: (1) acknowledgement of membership by the individual, the organization, or another party member; (2) actively working to further the organization’s aims in a way that suggests close affiliation; (3) receiving financial support or recognition from the organization; (4) determination of membership by a competent court; (5) statement from local or US law enforcement authorities that the individual is a member; (6) frequent association with other members; (7) voluntarily displaying symbols of the organization; and (8) participating in the organization’s activities, even if these activities are lawful. DOS recognizes that, in most cases, membership requirements are not open to public scrutiny. Thus, organized crime membership must be inferred from the totality of the information available.
This is where tattoos become relevant. A consular officer may consider certain tattoos as a display of symbols of the organization or maybe as a form of acknowledgment by the individual of his membership in the organized crime group. However, the presence of certain tattoos, by itself, should not a basis for finding the applicant inadmissible. The consular officer must also consider the applicant’s own statements under oath during the visa interview and the applicant’s personal, criminal and immigration history.
Thus, although consular officers are required to examine the totality of circumstances when making a finding of inadmissibility under INA 212(a)(3)(A)(ii), an applicant should take the initiative to bring sufficient evidence to refute any suspicions of active membership in an organized crime group. It’s important to avoid a finding of inadmissibility under INA 212(a)(3)(A)(ii) because such inadmissibility is permanent and there is no waiver. If the visa applicant was indeed a member of the group, he should submit clear and compelling evidence that he has ceased to be associated in any way with the organized crime group.
Finally, DOS recognizes that there could be rare occasions where active members of organized crime groups could be issued visas in specific cases such as where the applicant was entering on a controlled basis as part of an official governmental delegation on official business. A visa could be issued in this situation since there would be reason to believe the alien was not going to engage in violations of US law. A visa could also be issued if a serious medical emergency could justify the visit or if the alien was coming to cooperate in a US Government investigation into criminal activities.
Since there is no relief to a finding of inadmissibility under INA 212(a)(3)(A)(ii), an applicant with tattoos that could be interpreted as an indication of gang membership must prepare for a convincing rebuttal at the visa interview.
