Resource Person: Professor Galya Ruffer, J.D., Ph.D.
Director, Center for Forced Migration Studies (CFMS)
Northwestern University, 2010 Sheridan Rd., Evanston, IL 60208
Tel: +00 (847) 49 13 759
Email: g-ruffernorthwestern [dot] edu; cfmsnorthwestern [dot] edu
Galya Ruffer is the founding Director of the Center for Forced Migration Studies housed at the Buffett Center for International and Comparative Studies at Northwestern University. Her work at the CFMS centers on the documentation of refugee rights and protection and her teaching and research interests include questions of citizenship, human rights, rule of law and the process of international justice and a particular focus on the role of testimonies in combating sexual violence in the DR Congo. She has published on asylum law and policy, human rights litigation in transnational courts and immigrant incorporation and integration in Europe. She holds a Ph.D. in political science from the University of Pennsylvania and a J.D. from Northwestern University. She has worked as an immigration attorney representing political asylum claimants both as a solo-practitioner and as a pro-bono attorney and currently serves on the American Immigration Lawyers Association Chicago asylum committee. At Northwestern she is also the Director of International Studies and on the faculty of the Political Science Department.'
This information aims to provide practitioners with an overview of the evolution of gang-related asylum claims and specific information on the standards that apply under international law. Although gang violence is a feature of everyday life in some parts of the world, the adjudication of claims of gang-based persecution has been limited mainly to Canada, Mexico and the United States and these cases have been brought primarily by young people from Central America. For example, in the United States asylum requests from those fleeing gang-related violence in Mexico reached a record 5,551 in 2010. On the other hand, only 165 were granted, meaning that for an individual fleeing gang-related violence, finding protection under the 1951 Refugee Convention is still very difficult.
Given the inconsistency in treatment of gang-related violence claims the UNHCR issued a Guidance Note in March 2010 on Refugee Claims Relating to Victims of Organized Gangs. The Guidance Note addresses whether victims of criminal gangs or activities associated with those groups may be considered in need of international protection under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and, if so, under what circumstances. The Guidance Note offers the most comprehensive analysis of international legal protection for gang-related asylum claims. It includes a detailed overview of the definition of what constitutes a “gang,” typology of victims of organized gangs and a legal analysis.
Not wishing to duplicate this note, this summary will concentrate on analyzing the principles of law established in domestic courts, focusing mainly on the United States where the greatest number of cases have been tried. I will include other countries as relevant and summarize the state of the law for the three forms of protection available for those fleeing gang-related violence: Asylum, withholding of deportation and the Convention Against Torture (“CAT”). This summary will also point out areas where the UNHCR Guidance Note has come out in support of a different interpretation of the protection obligated under the 1951 Refugee Convention for those fleeing gang-related violence than that currently in practice at the domestic level.
What is a “gang”?
Although there is no universally recognized definition of a “gang” under international law, in its Guidance Note the UNHCR stipulates a “gang” refers to:
- Relatively durable, predominantly street-based groups of young people for whom crime and violence is integral to the group’s identity.
- Organized criminal groups of individuals for whom involvement in crime is for personal gain and their primary “occupation”
- Vigilante type groups involved in criminal activities.
Background of gang-related violence claims
Historically, the claim to asylum based on gang-related violence was directly related to the inadmissibility and deportability of aliens who commit gang crimes. Following the end of the civil wars in Central America and the signing of peace accords in El Salvador in 1992 and Guatemala in 1996, the United States began a policy of deporting gang members, raised in the United States, to Central America and Mexico where gangs were rare creating was have come to be known as transnational youth gangs. As one of the poorest nations in the region, Honduran youth violence has always been among the highest in Central America with gangs such as MS-13 and Mara 18 the most deeply entrenched. In response to deportation orders, in the early 2000, lawyers began to argue that Salvadoran youth faced persecution as perceived or actual gang members.
The increasing number of immigrant gang youth deportations to Central America led to the emergence of what has come to be known as “transnational youth gangs”. Central American governments responded to increasing gang violence with the introduction of El Plan Mano Dura (tough, or firm, hand) policies, a “zero tolerance” approach, based on the policing model of the United States but which had become militarized in the local context of countries such as El Salvador. Mano Dura allowed for known and suspected gang members to be routinely rounded up by police and held without trial. Many suspected gang members were arrested on the grounds of ‘illicit association,’ because they did not possess identity papers or merely for had identifying tattoos. In addition, under Mano Dura, extrajudicial killings of known and suspected gang members increased with police and military involvement.
These policies were and are particularly harmful to children. In addition to rounding up children, sometimes as young as 12 or 13 years of age, without proof of their gang association and denying them fundamental due process guarantees including the right to a fair trial, some facilities detained children with adults, leading to rape and sexual abuse (Boulton 2011:26).
Until 2009, American courts rejected asylum claims based on gang violence on the grounds that the state were trying to crack down on gang violence. They routinely held that, even though the claimant was credible, the violence was a “personal problem” rather than “police neglect” or something the government was “unable or unwilling” to control.
Most claims were connected to Central America, but there are also claims arising from gangs in Albania, Jamaica, ‘skinhead’ (far-right) gangs in Eastern Europe and the Russian Federation (Boulton 2011:4).
Grounds for Asylum
This pattern of violence in which youth who had been deported from western states were seeking reentry or resisting deportation after having been either involved in youth gangs in El Salvador, Honduras or Guatemala or targeted by them for resisting membership has led to the recognition of a new type of victim of persecution that falls into four categories:
- Resistance to gang activity
- Former or current gang members
- Female victims and critics of State’s anti-gang policies and activities
- Family members
Those fleeing gang-related violence must prove a “well-founded fear” or persecution on the basis of political opinion, race, religion, nationality or a member of a particular social group. In gang-related asylum claims it has not been difficult for claimants to show a, “well-founded fear,” but showing that the fear is “on account of” one of the protected grounds (race, religion, nationality, political opinion or membership in a social group), known as the “nexus” requirement, and the connection to governments’ persecution or failure to protect is more difficult.
A general fear of gang violence or recruitment is insufficient. Rather, the claimant must show that he/she was specifically targeted for gang membership due to one or more of the protected grounds. In the case of gang-related violence in Central America where race and nationality are not at issue, this leaves political opinion, religion or membership in a particular social group as the only basis for claims.
Second, the persecution must be at the hands of the government or a third party that the government is unable or unwilling to control. Asylum has been granted in gang-related cases where the basis has been political persecution by the state. For example, where politicians target journalists who report on gangs. In the Latin American context, persecution is sometimes at the hands of the state – “police persecution” - through “zero tolerance” laws that support joint police-military patrols and serve as a pretext for “cleansing” of neighborhoods.
In most gang-related claims, the persecution involves non-state actors. The UNHCR Handbook on Procedures and Criteria for Determining Refugee States (hereafter UNHCR, Handbook), persecution may “emanate from sections of the population that do not respect the standards established by the laws of the country concerned”. The UNHCR Handbook further provides that “Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities or if the authorities refuse, or prove unable, to offer effective protection” (UNHCR, Handbook: para.65).
According to the UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 1 May 2002 (hereafter UNHCR, Guidelines on Membership of a Particular Social Group”), para. 23, the “causal link” or “nexus” is satisfied in the case of non-state actors (1) whether or not the failure of the State to protect the claimant is Convention related or (2) where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for a Convention reason.
The definition and interpretation of gangs as non-state actors has significant implications for the question of whether an applicant can relocate within the territory where the applicant must show he/she cannot relocate because the gang has nation-wide reach and organization. This has been easier to document in Central American gang cases since the countries are small as compared to Russia or the Ukraine. Once an applicant has shown past persecution, however, the burden of proof is on the government to show that internal relocation is an option (Lister 2008: 839).
The following is a summary of the relevant tests needed to satisfy an asylum claim based on gang related violence where the claim is based on an imputed political opinion, religion or membership in a particular social group. An asylum seeker can also base a claim on what is called ”mixed motive.” In a mixed motive case, the applicant must show that even though the persecutor was motivated by a non-cognizable reason (e.g., to extort money), the persecutors were also motivated by the asylum seeker’s race, religion, nationality, social group, or political opinion.
Political opinion needs to be understood in a broad sense to encompass “any opinion on any matter in which the machinery of State, government, society, or policy may be engaged” (UNHCR Guidance Note: para. 45). Political opinion can be either “manifest” or “imputed” but there must be some evidence that gangs have this in mind in some way. An applicant who does not wish to join a gang and fears for his safety because of his “neutral” position, might be able to demonstrate “manifest” political opinion if there was explicit political consideration and there is documentation that the gang opposes this position (UNHCR Guidance Note: para. 50). One must be careful to distinguish forced recruitment to further the gang’s own criminal goals, from the situation, which does qualify for asylum, where if one refuses recruitment, an illegal use of violence will follow as “persecution” for that imputed or manifest political opinion.
A claim based on religion would be one where the applicant’s religious beliefs are incompatible with gang life style. The applicant might have refused to join a gang because of his/her religious belief of conscience or was targeted after a religious conversion when trying to exit the gang. The UNHCR Guidance Note cites cases from the U.S., Canada and New Zealand that have offered guidance in cases of this kind (para. 32).
Particular Social Group
Most of the gang-related asylum cases are made under the ground of “particular social group” which is generally a contested and evolving area of asylum law. The UNHCR defines a “particular social group” as “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. This is also known as the “immutable or fundamental characteristic” test. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights” (UNHCR, Guidelines on Membership of a Particular Social Group: para. 34). According to the UNHCR a particular social group can be established through two alternate approaches that are emerging in State practice: (1) “protected characteristics” approach and (2) “social perception” approach. The group only needs to be identifiable through one of the approaches, not both. However, US courts have not accepted this position and requires both a finding of an “immutable or fundamental characteristic” and “social visibility.”
Protected characteristics are those that are fundamental to one’s conscience and exercise of human rights such as those found in the International Covenant on Civil and Political Rights. Whether a shared, alterable trait or characteristic is so fundamental to the group members’ identities or consciences that they should not be required to change it or disassociate to avoid persecution is a fact-intensive determination.
An applicant must show that the shared characteristic is “an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership…that members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or conscience” (See, Matter of C-A). The most relevant in gang related cases is a shared past experience. In the United States, the Board of Immigration Appeals (“BIA”) has accepted an alien’s status as former member of a national police, a soldier or a government informant as immutable characteristic but this shared past experience must also meet the “on account of” or “nexus” element.
The common characteristic can also be one that, although it can be changed, is so fundamental to identity or conscience that it would contravene the group members’ most fundamental human rights to change it (UNHCR, Guidance Note: para. 38). The fact that group members’ voluntarily assumed an extraordinary risk of serious harm in taking on the trait that defines the group may be evidence of such fundamentality (USCIS Memo Guidance on Matter of C-A, 2007: Sec. I.A3). On the other hand, a government informant who takes on a “calculated risk is not in a position to claim refugee status should such risks materialize” (See Matter of C-A).
The following is an analysis of the main categories that have been found to constitute a “particular social group”.
Youth Gang Recruits
Cases collected of unpublished opinions from pro bono attorney’s show that some courts have accepted “young male students who expressly oppose gang practices and values and wish to protect their family members against such practices” as a “particular social group.” One case involved a brother and sister from El Salvador fleeing persecution of MS-13 (2007) and the sister was held to belong to the group “young female students who are related to an individual who opposes gang practices and values” (on file with the author). In this case the brother’s opposition was “visible” and his relationship to his sister and she to her brother, “immutable.”
On the other hand, courts have rejected the category “innocent youth who resist gang membership based on their personal, moral and religious opposition to the gang’s values” as a social group as lacking “social visibility”. In two related US decisions Matter of S-E-G and Matter of E-A-G it was held that basing a particular social group on “youths perceived to be affiliated with gangs,” is “inconsistent with the principles underlying the bars to asylum…based on criminal behavior”.
Women who fear rape, human trafficking or violence due to familial affiliation
Claims such as “young women who will not voluntarily enter the sex trade,” “young women without male protection” or “victims of the sex trade,” often fail because it was held there was only a general fear of crime and not persecution “on account of” membership in the social group and singled out independently of the harm suffered (Lister 2008: 832).
On the other hand, there is an unpublished opinion of a case brought by a pro bono attorney on file with the author of this summary that was successful in which the attorney argued that the particular social group was “young women who refuse to be the victims of violent sexual predation of gang members.” The immigration judge held that there was persecution “on account of” a woman’s refusal to be a victim of sexual violent predation where there was documentation that the applicant made formal complaints but no action was taken demonstrating that gang members operate with virtual impunity.
The Third Circuit Court of Appeals refused to recognize “street children” as a particular social group where gangs harassed, stole, and physically abused one child. The Court stated that “the persecution cannot be what defines the contours of the [particular social] group” (Funes 2008: 325). On the other hand, “abandoned street children” was successful in a Guatemalan case where a young woman who had been abused at home, ran away and had been taken in by a gang and forced to work and was threatened by a rival gang. In this case, it was the fact that she had suffered persecution at the hands of her family and had a well-founded fear of future persecution as a member of a particular social group, “abandoned street children” that the Guatemalan government failed to protect and took part in their persecution (Lister 2008:836).
It may be helpful to have an expert opinion from a psychologist of Post-Traumatic Stress Disorder. It is also helpful to have clear documentation that the state is complicit in the violence against women situated similarly to the applicant or as part of an institutionalized pattern or practice.
In its Guidance Note, the UNHCR stipulates that families could be subjected to threats and violence as an act of retaliation or to exert pressure on other members of the family to succumb to recruitment attempts or extortion demands. These threats can be the result of a family member being perceived as holding the same anti-gang views as a father, husband, son or brother (para. 17).
Inclusion of Former Gang Members Excludable under Article 1F(b)
These claims involve former gang members or persons with gang tattoos who apply for asylum since they fear being sent back to their home country based on being identified as a gang member and the target of police.
A former gang member might fall within Article 1F(b) of the 1951 Convention that provides for the exclusion from refugee status of persons who have committed “a serious non-political crime outside the country of refuge prior to being admitted to that country as a refugee.” According to the UNHCR’s Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, (Hereafter “UNHCR Exclusion Clause Guidelines”), “the burden of proof with regard to exclusion rests with the State (or UNHCR) and, as in all refugee status determination proceedings, the applicant should be given the benefit of the doubt” (para. 34). On the other hand, where individual responsibility for actions which give rise to exclusion is presumed, as might be the case where, as stated in para. 19, the purposes, activities and methods of the group is of a particularly violent nature, with the result that voluntary membership thereof may also raise a presumption of individual responsibility, the burder of proof is reversed, creating a rebuttable presumption of excludability (para. 34.). But para. 19 also advises that “[c]aution must be exercised when such a presumption of responsibility arises, to consider issues including the actual activities of the group, its organizational structure, the individual’s position in it, and his or her ability to influence significantly its activities, as well as the possible fragmentation of the group. Moreover, such presumptions in the context of asylum proceedings are rebuttable.
Therefore, for the exclusion to be justified, individual responsibility must be established in relation to a crime falling within the scope of Article 1F. Three issues need to be addressed:
(1) Involvement of the applicant,
(2) His/her mental state and
(3) Possible grounds for rejecting individual responsibility
For a full analysis see Frances Webber’s page on the Exclusion Clause.
This area is currently in flux. In the United States the Seventh Circuit recently ruled that former gang membership can be the basis for a particular social group given that Congress has not enacted a mandatory bar as it had for persecutors (Ramos v. Holder, 2009), but the Ninth Circuit in Arteaga v. Mukasey (2007) held the contrary, that Congress did not intend to offer protection for former gang members and that disassociating oneself from a group does not automatically put one in a particular social group (See, USCIS Memorandum, “Notification of Ramos v. Holder: Former Gang Membership as a Potential Particular Social Group in the Seventh Circuit, March 2, 2010)
Since the shared characteristic cannot be defined by terrorist, criminal or persecutory activity or association, either in the past or present, former gang members are generally barred from claiming asylum and will more likely find relief under CAT or Withholding of Removal. In some cases, however, former gang members have been awarded asylum based on political opinion.
Withholding of Removal and the Convention Against Torture (CAT)
Withholding of removal has generally not been an option for cases of gang-related violence since it requires more stringent proof than that required for a grant of asylum. The applicant must show that it is “more likely than not” that he will be persecuted on account of a Convention ground.
CAT claims require that “no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Courts have interpreted Article 3 of CAT to mean a claimant may not be deported if it is “more likely than not” that he/she would be tortured, but the Board of Immigration Appeals in the United States has held that the “torture” must be something inflicted “with the consent or acquiescence of a public official” (Lopez-Soto v. Ashcroft, 2004) This means that public officials must be aware of such activity and breach their responsibility in failing to prevent it or are “willfully accepting” of the torture.
This creates a high bar for CAT claimants who must show that the home government is both aware of the activity and tolerates its occurrence. Other courts, however, have held that “consent or acquiescence” is broader and means “willful blindness” to the torture of their citizens by third parties (Zheng v. Ashcroft, 2003) or whether public officials “would turn a blind eye to torture” (Ontunez-Tursios v. Ashcroft, 2002) (See., Fanesi 2008: 321-322).
A successful case for a gang recruit depends on evidence showing the de jure treatment of the “official law” such as government inefficiency and police corruption in the proliferation of gang violence (Fanesi 2008: 327). Evidence provided of “consent and acquiescence” based on “willful blindness” has three prongs: (1) presence of systematic deficiencies in the government response to private torture, (2) involvement of government officials in the torture and (3) whether or not the de jure government is the de facto government (Fanesi 2008, drawing from Patricia Freshwater, 2005:329).
A successful case for a former gang member, often based on the inability to get rid of tattoos which are a defining mark of membership, requires documentation of the government’s hard-line tactics in their efforts to curb gang proliferation including arbitrary arrests and extra-judicial killings by government-sponsored death squads that amount to government sponsored “social cleansing” (Fanesi 2008: 333). The claimant must still show, however, that he has been particularly persecuted as opposed to being subject to “general conditions of violence and gross human rights violations.”
As held by the Court in Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003), there needs to be “specific evidence in support of the contention that the majority of persons similarly situated in terms of gang status or tattoos were subject to torture” (Fanesi 2008: 336). Since the general age range for being a target in Central America is 23 and younger, a case for someone outside of this age range needs to present evidence that this range is too narrow.
Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir. 2004) held that the Petitioner had met CAT requirement that torture was “more likely than not,” but the plea was denied because of failure to provide evidence of “consent or acquiescence” through “willful blindness” by local government to the torture of their citizens by third parties.
RRT Case No. 0906782, RRTA 1063, Australia, Refugee Review Tribunal, 24
Nov. 2009, http://www.unhcr.org/refworld/docid/4b5708f42.html, an El Salvadorian case where the applicant feared that if he were to return to El Salvador, he will be attacked, beaten and possibly killed by the Maras (gangs) including the Mara 18, or the 18th Street Gang, (M-18) and the Mara Salvatrucha (MS-13). He states that they will target him for robberies and criminal activity primarily because he is a bus driver. The court recognized the particular social group as “bus, public transport and truck drivers” (cited in UNHCR Guidance Note).
Canada (Minister of Citizenship and Immigration) v. X, CanLII 47735, Canada Immigration and Refugee Board, 31 May 2007, http://www.unhcr.org/refworld/docid/4b7a9d2d2.html Children who lack the requisite maturity and mental capacity would normally not be considered to have voluntarily joined a gang (cited in UNHCR Guidance Note).
Kinko v. Canada (Minister of Citizenship and Immigration) 3 F.C. 327;  F.C.J. No. 228, Canada Federal Court, 22 Feb. 2000, http://www.unhcr.org/refworld/docid/403f18574.html. Where an applicant has refused the advances of a gang because s/he is politically or ideologically opposed to the practices of gangs and the gang is aware of his/her opposition, s/he may be considered to have been targeted because of his/her political opinion (cited in UNHCR Guidance Note).
Yoli v. Canada (Minister of Citizenship and Immigration), F.C.J. No. 182 2002 FCT 1329, Canada, Federal Court, 30 Dec. 2002, http://www.unhcr.org/refworld/docid/4039fa464.html
Applicant refused to participate in the gang's criminal activities. He witnessed a murder carried out by Boca and was able to identify the perpetrators. After leaving the group, Yoli began to be subject to death threats over a five-year period. The death threats eventually forced him to flee the country. The board accepted his testimony as credible and trustworthy, but found that his fear of a criminal gang did not have a nexus to any of the grounds given in the Convention definition. Yoli argued that the board erred in holding that there was no nexus between his fears and any of the enumerated grounds in the Convention refugee definition. The Minister argued that this was a question of fact within the board's expertise, and as such it should be accorded significant deference. HELD: Application dismissed. Although there was evidence that Yoli might be subjected to harm if he returned to Argentina, he failed to demonstrate that such harm or threat was connected to his political opinion or one of the other enumerated grounds in the definition of Convention refugee. Yoli did not have a political opinion within the definition accepted by the courts. Boca was threatening him strictly based on its perception that he was to reveal evidence to the authorities and not because of his perceived political opinion (cited in UNHCR Guidance Note).
X (re), File No. TA7-13448, TA7-13528; TA7-13529, TA7-13530, Canada, Immigration and Refugee Board, 28 July 2008 (amended 16 Sep. 2008), http://www.unhcr.org/refworld/docid/4b7bad512.html, which concerned a Roma family fearing harm from skinhead gangs (cited in UNHCR Guidance Note).
MA6-03043, CanLII 47104, Canada, Immigration and Refugee Board, 29 Feb. 2009,
http://www.unhcr.org/refworld/docid/4b7aa3662.html, which recognized that “poor Haitian women
with HIV/AIDS” can constitute a particular social group (cited in UNHCR Guidance Note).
Refugee Appeal Nr. 76044, New Zealand, Refugee Status Appeals Authority, 11 Sept.2008, http://www.unhcr.org/refworld/docid/48d8a5832.html. The 1951 Convention ground of political opinion needs to reflect the reality of the specific geographical, historical, political, legal, judicial, and socio-cultural context of the country of origin (cited in UNHCR Guidance Note).
Althea Sonia Britton v. Secretary of State for the Home Department, EWCA Civ 227, U.K. Court of Appeal, 7 Feb. 2003, http://www.unhcr.org/refworld/docid/403e49454.html. The appellant and her family became the targets of a gang for political reasons (her cousins left a political party in which they had been active members, and as result were suspected of betraying it). The Court allowed the appeal and remitted the appellant's case to the IAT to enable them to reconsider the sufficiency of protection issue in the light of all the evidence. Specifically, the Court said: “The fact that the law enforcement and security forces in Jamaica are overzealous does not mean that they exert effective control. Nor does the fact that they use armed response when apprehending criminal suspects. The CIPU report which we have seen does refer to gang violence in Jamaica, particularly in Kingston and the police's ability to control it. It may be that on consideration of that material it can properly be concluded that there is sufficiency of protection. But neither the special adjudicator or the IAT refer to that part of the report in their decisions, or appear to have given it any consideration in the light of the appellant's evidence to which I have referred. It may well be, of course, that the IAT gave such scant consideration to the evidence on this issue because they thought it was irrelevant. But that is a further reason for getting them to reconsider it.”
Gatimi, et al v. Holder, No. 08-3197 (7th Cir. 2009) overturning an immigration judge who ruled that acts committed by the Mungiki against Gatimi were not persecution but merely ‘mistreatment.’
Particular Social Group
Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) holding that former gang membership is a cognizable social group for asylum purposes.
Santos‐Lemus v. Mukasey, 542 F.3d 940 (9th Cir. 2008) The 9th Circuit denied the petition for review upholding the BIA’s finding that Santos-Lemus could not establish a well founded fear based on his membership in his family as a particular social group, as his mother had remained unharmed in El Salvador following his departure. Additionally, the Court found that the presented social group of “a young man in El Salvador resisting gang violence unstoppable by the police,” did not have sufficient social visibility and particularity. The Court struck down the petitioner’s claim that he was targeted based upon his “anti-gang” political opinions, and his request for relief under the Convention Against Torture.
Matter of S‐E‐G‐, 24 I&N Dec. 579 (BIA 2008) Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a “particular social group.”
Matter of E‐A‐G‐, 24 I&N Dec. 591 (BIA 2008) In Matter of E-A-G-, 24 I&N. Dec. 591 (BIA 2007), the first gang case involving the new BIA social visibility series, the stakes were higher because the IJ has found that the Honduran youth in question would be targeted as part of a particular social group based on his youth and affiliation or perceived affiliation with gangs. The Board asserted that the IJ’s opinion was based on two potential social groups. The first social group, persons resistant to gang membership, the Board acknowledged as potentially having statistical reality, but maintained that without actual social visibility no such group can be acknowledged for their purposes. E-A-G-, at 594–5. Hence, actual visibility was very much the issue and the deciding factor in E-A-G-.
Valdiviezo‐Galdamez v. Att’y Gen. of the United States, 502 F.3d 285 (3d Cir. 2007) The 3rd Circuit remanded this case to the BIA, finding that a Columbian woman persecuted by the FARC had a well founded fear of future persecution based on her membership in a particular social group of “women who have escaped involuntary servitude after being abducted and confined by the FARC.” The Court further found that this group was immutable and supported by the record.
Matter of C‐A‐, 23 I&N Dec. 951 (BIA 2006)(1) The members of a particular social group must share a common, immutable characteristic, which may be an innate one, such as sex, color, or kinship ties, or a shared past experience, such as former military leadership or land ownership, but it must be one that members of the group either cannot change, or should not be required to change, because it is fundamental to their individual identities or consciences. Matter of Acosta, 19 I&N Dec. 211(BIA 1985), followed. (2) The social visibility of the members of a claimed social group is an important consideration in identifying the existence of a “particular social group” for the purpose of determining whether a person qualifies as a refugee. (3) The group of “former noncriminal drug informants working against the Cali drug cartel” does not have the requisite social visibility to constitute a “particular social group.
Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th. Cir. 2004) The Court denied Guatemalan gang member asylum petition. “Petitioner presented evidence that the presence of violent street gangs was a widespread problem in Guatemala, that his older brother was killed because he refused to join the Mara 18 gang, that the petitioner and his cousin fled Guatemala when Mara 18 threatened to kill them if they did not join, and that his cousin was killed by Mara 18 after Mexican authorities deported the cousin to Guatemala. The BIA held that petitioner failed to establish that the harm he feared was on account of a protected ground. Although the court rejected the IJ’s conclusion that “family did not constitute a particular social group under 8 U.S. C. S. 1101 (a) (42) (A), it found that substantial evidence supported the conclusion that petitioner was not persecuted “on account of” his family membership. Instead, the evidence supported the conclusion that petitioner as being recruited and harassed because he was a teenaged male living in Guatemala. The Court also agreed that petitioner failed to establish eligibility for relief under CAT because he did not show that the national or local governments acquiesced in the torturous activities of the gang.”
Castellano‐Chacon v. INS, 341 F.3d 533 (6th Cir. 2003) The 6th Circuit held that persecution of "tattooed youth" did not meet the standard for social group as they did not share a common, immutable characteristic.
IJ Williams (Baltimore Immigration Court) (June 11, 2009) Granting asylum to an applicant whose brother was murdered in El Salvador for refusing to join the MS‐13 Gang, finding particular social group to be the applicant’s nuclear family. http://www.uscrirefugees.org/2010Website/5_Resources/5_4_For_Lawyers/5_4...
IJ Tsankov (Los Angeles, January 14, 2009) Granting asylum to twin girls from El Salvador based on their family group that has been a target of gang violence.
T. Alexander Aleinikoff, "Protected characteristics and social perceptions: an analysis of the meaning of 'membership of a particular social group, '" reprinted in Erika Feller, Volker Turk & Frances Nicholson, eds, Refugee Protection in International Law: UNHCR's Global Consultations in International Protection 275 (2003)
Fanesi, Monica, “Relief Pursuant to the Convention Against Torture: A Framework for Central American Gang Recruits and Former Gang Members to Fulfill the ‘Consent or Acquiescence Requirement’”, 13 Roger Williams University Law Review 308 (Winter, 2008).
Freshwater, Patricia, “The Obligation of Non-Refoulement Under the Convention Against Torture: When Has a Foreign Government Acquiesced in the Torture of Its Citizens?” 19 Georgetown Immigration Law Journal 585 (2005).
Funes, Freddy, “Removal of Central American Gang Members: How Immigration Laws Fail to Reflect Global Reality,” 63 University Miami Law Review 301 (Oct. 2008).
Lister, “Gang-Related Asylum Claims: An Overview and Prescription,” 38 University Memphis Law Review 827 (Summer 2008).
Marked for Death: The Maras of Central America and those who Flee their Wrath. Jeffrey D. Corsetti, 20 Geo. Immigr. L.J. 407, 2005-2006
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UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002.
UNHCR Brief in Valdiviezo-Galdamez v. Holder (3rd Cir.) on UNHCR Social Group Guidelines clarifying (1) “Protected Characteristics” and “Social Perception” as alternate approaches for purposes of defining a Particular Social Group, (2) that there is no requirement that a particular social group be visible to society at large.
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
USCIS Memo: Guidance on Matter of C-A, 2007, http://www.uscis.gov/USCIS/Laws/Memoranda/Archive%201998-2008/2007/Jan%2...
USCIS Memo: Notification of Ramos v. Holder: Former Gang Membership as a Potential Particular Social Group in the Seventh Circuit (March 2, 2010):
Withholding of Removal and Convention Against Torture
Amilcar‐Orellana v. Mukasey, 551 F.3d 86 (1st Cir. 2008) Upholding denial of Convention Against Torture claim based on gang violence in El Salvador and describing the government’s efforts to control gang activity.
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) The Court denied the petition for review of a Lawful Permanent Resident from El Salvador seeking relief under the Convention Against Torture, due to his membership in a social group of “American Salvadorian U.S. gang members of a Chicano American street gang, and as former members of the same.”
Rranci v. Mukasey, 540 F.3d 165 (3d Cir. 2008) Nazmi Rranci, a native of Albania, seeks relief from an Immigration Judge’s order that he be removed from the United States. He petitions our Court for review of a decision by the Board of Immigration Appeals dismissing his appeal and declining to reopen his case. We decide whether the BIA erred in holding that his case cannot be reopened on the ground of ineffective assistance of counsel. A sub-issue is whether an alien who serves as a Government witness in the United States can be removed to his home country if the person he made a statement or testified against has threatened his life. This raises an issue not addressed before by us — the extent a United Nations Convention recently ratified by Congress affects removal in this case. We grant the petition and remand to the BIA for further proceedings.
Zheng v. Ashcroft, 332 F.3d 1186 (9th. Cir. 2003)
Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002)
Reports on Gang Violence
UNHCR, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the need for International Protection, 13 March 2014, podcast and report available to download at:
Boulton, Michael, “Living in a World of Violence: An Introduction to the Gang Phenomenon,” UNHCR Legal and Protection Policy Research Series, July 2011, http://www.unhcr.org/protect.
Central American Gang-Related Asylum: A Resource Guide. Washington Office on Latin America (WOLA), May 2008
Gangs in Central America Congressional Research Service Report for Congress, August 2, 2007. Examines legislation introduced to increase cooperation among U.S., Mexican, and Central American officials in the tracking of gang activity and in the handling of deported gang members.
No Place to Hide: Gang, State and Clandestine Violence in El Salvador. The International Human Rights Clinic Human Rights Program, Harvard Law School, February 2007
Transnational Study on Youth Gangs. The Washington Office on Latin America, March 30, 2007. A year-long study of Central American youth gangs provides a concise executive summary as well as country-specific reports.
Central American and Mexico Gang Assessment USAID. April 2006.
Seeking Asylum from Gang-Based Violence in Central America: A Resource Manual. By the Capital Area Immigrant Rights (CAIR) Contains a list of the arguments of successful and unsuccessful gang-related asylum cases. http://www.ailf.org/lac/GangResourceManual.pdf
U.S. Committee for Refugees and Immigrants
• Gang-Related Asylum Resources
Washington Office on Latin America - Central American Gang-Related Asylum Guide
Center for Gender and Refugee Studies
The National Immigration Project