Gang-related violence has proven to be an issue that has exploded in the Central American countries of El Salvador, Guatemala and Honduras. With a tight organization, access to modern communications technology such as cell phones, an emphasis on loyalty and the influx of drug money, gangs in Central America have been able to act with impunity. Sadly, police corruption has not helped the situation.
Yet, the trend in U.S. immigration law has been to place greater restrictions on the ability of victims and potential victims of gang-related violence in Central America to seek protection in the United States. Specifically, a restrictive interpretation of U.S. asylum law greatly diminishes the ability of those fleeing from gang-related violence to receive protection in the United States.
Asylum is a humanitarian program which permits a person to stay in the United States, and eventually apply for permanent residency, if that person fear persecution based on race, religion, political opinion, nationality or membership in a particular social group. It is not enough that a person has been the target of violence. Rather, an asylum applicant must show that he or she has been targeted or threatened because of one of the protected bases.
Gang-related asylum cases have focused on the protected basis of membership in a particular social group. The criteria to determine whether a particular social group exists has traditionally focused on if the group shares certain characteristics that either cannot be changed, or that the members of the group should not be required to change because they are fundamental to the members' identities or consciences.
Using this standard, asylum protection has been granted to such groups as homosexuals from Cuba and young women from Togo who had not undergone female genital mutilation, but who opposed the practice.
In 2006, however, the Board of Immigration Appeals ("BIA") changed the criteria it used to determine if a particular social group exists. The BIA found that a particular social group had to have a degree of social visibility and had to be defined with particularity. Thus, informants who worked against a drug cartel lacked the social visibility to be defined as a particular social group. In 2008, using the social visibility and particularity requirements, the BIA rejected Salvadoran youth who have resisted MS-13 gang recruitment on personal, moral and religious grounds as a particular social group. The BIA noted that such individuals are not perceived as a group by society.
The BIA's criteria have therefore made it difficult for victims of gang-related crimes, potential targets of gang-related crime and police informants who have been threatened by gangs to receive asylum in the United States.
The BIA, however, is not the final word on asylum law. Rather, legal interpretations made by the BIA are reviewable by the various Circuit Courts of Appeals.
Six of the thirteen circuit courts have adopted the social visibility and particularity requirements. Two have rejected the standard. In one circuit, the standard is currently under review.
One of the most biting critics of the BIA's new standard is Judge Posner of the Seventh Circuit. Judge Posner noted that the social visibility requirement "makes no sense," and that many of the groups that had already been recognized under prior BIA precedent would not meet the requirement. In a homophobic society, for example, a homosexual could pass as a heterosexual, particularly if the person was trying to avoid assassination or other forms of violence. Likewise, a woman who has not undergone genital mutilation would look no different from any other woman in society. Indeed, such people would actively avoid social visibility in order to avoid being a target of persecution.
The United Nations Human Rights Committee ("UNHRC") has likewise criticized the social visibility criteria adopted by the BIA. Because asylum law is based on U.N. agreements, UNHRC guidelines are often used by U.S. courts in interpreting the law. The UNHRC has argued that the social visibility requirements are inconsistent with UNHRC social group guidelines.
Although Immigration Court judges are bound to follow BIA precedent, this should not prevent those with gang-related asylum claims from seeking asylum protection. Quite the contrary, applicants who oppose the BIA standard have the right to seek review of the BIA's interpretation of the law with the relevant circuit court. Even if an applicant is subject to the jurisdiction of one of the circuits which has adopted the social visibility standard, legal review is still possible with the U.S. Supreme Court. Given the split among the circuit courts on this key issue, there is the possibility that with the right case, the issue will be accepted by the Supreme Court for review. Although those who seek asylum because of the fear of gang-related violence face a tough fight, the issue should still be pressed until the Supreme Court rules on it.
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