Problems with Gang-Related Asylum Cases

Gang related asylum cases present one of the biggest challenges to immigration attorneys. But they also represent one of the largest categories of asylum claims.

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

Links

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

Special Immigrant Juvenile Status Findings Made by Virginia JDR Court

A judge in the Norfolk Juvenile and Domestic Relations General District Court granted an order making the findings necessary for a teenage girl to apply for Special Immigrant Juvenile Status (SIJS).  The order will now allow the girls to submit an application to U.S. Citizenship and Immigration Service to become a permanent resident.

Last year, thousand of unaccompanied minors fled Central America to brave the treacherous journey to cross the border into the United States.  This girl, whose father abandoned her before he was born and who was living with her grandmother, was among those unaccompanied children.  Her grandmother had become too ill to take care of her, and she wanted to be reunited with her mother.

Once across the border, she reported herself to the immigration authorities and was taken into detention. Eventually, the Office of Refugee Resettlement became involved and reunited the girl with her mother.

The girl was placed in removal proceedings in Immigration Court. Although she lived in Norfolk, there is only one Immigration Court with jurisdiction over aliens living in Virginia.  That is the Immigration Court located in Arlington.  This meant that the girl and her mother had to wake up early, and leave Norfolk by 4:00am in order to make a 9:00am Immigration Court hearing.

Initially, the case seemed hopeless.  However, more and more immigration practitioners have been using the SIJS provisions of the Immigration and Nationality Act (INA) to help children in similar situations.

The SIJS provisions permit a state court with jurisdiction over juveniles and custody matters to make findings that: (1) the child has legally been committed to, or placed under the custody of, an agency or deparment of a state, or an individual or entity appointed by a state or the court; (2) reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child's best interests to be returned to the child's or parents' home country or country of last residence.

Once the state court makes these findings, the child can then file an I-360 visa petition along with an I-485 application to adjust status to allow USCIS to make the child a permanent resident.

Because the language of the statute requires a finding that reunification with one or both of the child's parents is not viable, this has allowed a parent of a child who entered the United States unaccompanied to apply for custody through the state family courts and then apply for permanent residency for their child, so long as there is evidence that the other parent has been abusive, neglectful or has abandoned the child.  As was the case with the family who appeared before the court in Norfolk, the mother applied for custody and the court made findings that the father had abandoned the child.

This law has been used increasingly by single parents who are present in the United States without legal status to at least help give their foreign born children legal status.

The drawback to this law is that no parent of a child granted SIJS may then use that relationship with the child to apply for their own immigration benefits.  Thus, when a child granted SIJS status eventually becomes a citizen, that child cannot apply for a visa for his or her parents.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832
Se habla espanol (571) 551-6069