Many times, clients and prospective clients come into the office with the expectation that because they were victims of gang violence in their home country, that they should receive protection in the United States. But this is rarely the case.
As many immigration judges are quick to point out, asylum law is not meant to grant protection from general criminality. To receive asylum protection, and applicant must have a reasonable fear of persecution based on one of the five protected reasons. They are: race, religion, nationality, political opinion, or membership in a particular social group.
Often, advocating for a gang related asylum case involves trying to place the applicant in some particular social group. However, this category is not meant to be a catchall category. As recent case law has demonstrated, the group cannot be defined as being too large as to include a broad segment of society. There must be some boundary to the group. There must be something about this group that sets it apart from the rest of society. And the members of this group must see themselves as some kind of social unit.
Add to the complication the fact that there are 12 different federal circuits who review immigration court decisions. The result is great variety and what is an acceptable particular social group.
Young men who have been recruited by the gangs, but who have resisted such recruitment, for example, has been recognized as a viable particular social group in some circuits. But other circuits reject the category. Likewise, witnesses providing testimony against gang violence has been recognized by some circuits, but rejected by others.
This patchwork of decisions addressing what makes up a particular social group when it comes to gang-related violence has created a rather peculiar situation. Family ties are recognized as a valid basis upon which to build a particular social group. Thus, it is possible that family members of a person targeted for gang violence may qualify as a particular social group, while the person who is actually targeted for the gang violence will not qualify for asylum protection.
What is clear however is that the victims of the gang related violence need to establish some reason why the gang has targeted them, that sets them apart from the rest of their society. This can often be difficult for applicants who come from gang ravaged countries, like those of Central America.
One way around this problem is to make the claim that the applicant is being persecuted because of an imputed political opinion. Gangs in Central America at times operate much like governments. They control particular territories, charge taxes or rent for the people who live in their territories or do business in their territories, and protect their territories fiercely. Gangs have also been known to protect their authority, engaging in extreme violence against anyone who questions them. Gangs may also target a person for violence if the gang believes that the person is affiliated with a rival gang. Applicants who have been able to paint their case as one of a struggle against the power and authority of the gangs, and thus a case of an imputed political opinion, have met with some success in progressive federal circuits, such as the Ninth Circuit.
Certainly an argument can be made that United States is in a large way responsible for the uncontrollable gang situation in the northern triangle of El Salvador, Guatemala and Honduras. United States chooses to deport people after they have spent time in prison, where they have picked up their affiliations to American made gangs. Those deported individuals take back with them knowledge of an organizational structure that the Central American governments are simply unready and unable to address effectively.
But the reality is it is not politically popular for the United States to take responsibility for the gang violence in Central America. Instead, politicians push to close the borders, in an attempt to exclude the gang related element from United States. For the practitioner, the challenge is to find creative ways around this situation, and to work with the clients in order to craft the strongest asylum clean possible.
William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
Se habla espanol (703) 298-0502
National Immigrant Justice Center, Particular Social Group Practice Advisory
National Immigrant Justice Center, Resources for Asylum Claims Based on Membership in a Particular Social Group