Asylum and Gang Violence: Legal Overview
Released: 2014-09-05T00:00:00

The recent increase in the number of unaccompanied alien children (UACs) apprehended at the border between Mexico and the United States has raised questions about the role that gang-related violence in Central America may play in determining eligibility for refugee status and asylum. Gang activity is wide-spread in El Salvador, Guatemala, and Honduras, and attempts by these governments to control such activity have been seen as ineffective, at best, or as violating the civil rights of persons perceived as gang members or associates, at worst. The Office of the United Nations High Commissioner for Refugees (UNHCR) repeatedly noted this gang-related violence in its 2014 report, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection . Subsequently, in discussing the "surge" in the number of UACs arriving at the U.S.-Mexican border in FY2014, the UNHRC reiterated that 58% of these children cite "violence" in their home countries as "at least one key reason" for leaving.

Refugee status and asylum are two forms of discretionary relief that could enable UACs to enter or remain in the United States, and the Immigration and Nationality Act (INA) relies upon the same definition in determining eligibility for both. In both cases, to be eligible, aliens must prove that they have experienced past persecution, or have a well-founded fear of future persecution, on account of race, religion, nationality, political opinion, or membership in a particular social group. However, refugee status may only be granted to aliens outside the United States, while asylum may only be granted to aliens arriving at a port of entry or the U.S. border, or within the United States. Applicants for refugee status are also barred from appealing denials of their applications, while applicants for asylum are not. Thus, an equivalent to the extensive body of case law construing and applying the INA's definition of refugee in the context of asylum is lacking in the context of refugee status. Instead, the meaning of refugee for purposes of refugee status is typically construed in light of asylum cases, and asylum is the focus of this report.

The report provides an overview of the basis for asylum in U.S. law. It also discusses how key elements of the INA's definition of refugee have been construed and applied in gang-related asylum cases. The report briefly notes, in relevant places, related forms of relief from removal, such as withholding of removal under Section 241 of the INA or the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, but does not provide a comprehensive treatment of these topics.

It is also important to note that many potentially relevant decisions—namely, those by asylum officers within U.S. Citizenship and Immigration Services (USCIS) and immigration judges within the Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ)—are not published. There are reasons to believe that USCIS and EOIR may be more receptive to gang-related asylum claims than the decisions by the Board of Immigration Appeals (BIA) and the federal courts of appeals discussed here. However, USCIS and immigration judge decisions are not publicly available in the same way that published BIA decisions and federal court decisions are.

Basis for Asylum in International and U.S. Law

The INA's current protections for refugees and asylees are grounded in the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The Convention generally defined a refugee as any person who

[a]s a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country,

although persons who had "committed a crime against peace, a war crime, or a crime against humanity" were expressly excluded from this definition. Most notably, the Convention barred nations which are parties to it from returning refugees to their home country (or another country) where they feared persecution. It also obligated these nations to grant refugees freedom of religion and movement, the right to work and public education, and access to identity papers and travel documents, among other things. Conversely, it required refugees to respect the laws and regulations of their country of asylum. The United States was involved in drafting the Convention, but did not sign on as a party to it. However, it did sign on as a party to the Protocol, which amended the Convention by removing the temporal restrictions (i.e., "events occurring before 1 January 1951") from its definition of refugee .

The Refugee Act of 1980 ( P.L. 96-212 ) is widely recognized as having been enacted to bring U.S. domestic law into conformity with the United States' commitments under the Protocol. Among other things, the Refugee Act amended Section 101(a)(42) of the INA to define refugee in largely the same terms used by the Convention and Protocol:

The term "refugee" means ... any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The Refugee Act also added the current Sections 207, 208, and 209 to the INA, which, respectively, address refugee admissions, the granting of asylum, and the adjustment of refugees' and asylees' status to that of lawfully permanent resident aliens (LPRs). In addition, the Refugee Act amended then-Section 243 of the INA to generally bar the return of aliens to countries where the "alien's life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion." Subsequently relocated to Section 241 of the INA, this prohibition forms the basis for what is referred to as withholding of removal .

Withholding of removal under Section 241 of the INA represents the U.S.'s primary obligation under the Convention and Protocol. That is, as a party to the Protocol, the United States is barred from removing aliens, including aliens arriving at the U.S. border, to a county where he or she would be persecuted. The United States is not required, by the Protocol or otherwise, to admit refugees to the United States, grant asylum to persons in the United States, or permit refugees or asylees to adjust to LPR status or obtain citizenship. To the contrary, the INA expressly notes that the granting of asylum is discretionary, and courts have upheld its denial even when an alien fulfills the requirements of the statutory definition of refugee .

It is also important to note that, even though the United States signed on as a party to the Protocol, and the INA's definition of refugee generally corresponds to that in the Convention and Protocol, it is U.S. domestic law—not international law—that governs U.S. obligations as to individual aliens. Relatedly, the same terms (e.g., persecution , particular social group ) may be construed differently when used in the Convention and Protocol than when used in the INA.

Application of the INA's Definition of Refugee

Aliens seeking asylum in the United States have the burden of establishing, by a preponderance of the evidence, that they are "refugees" under the INA's definition of this term. This means showing that they (1) have suffered persecution, or (2) have a well-founded fear of persecution (3) on account of (4) a protected ground (i.e., race, religion, nationality, political opinion, or membership in a particular social group). However, the meaning of certain of these terms—such as persecution and particular social group —is not established by Convention or Protocol, or by the INA and its implementing regulations. Instead, their meaning has been determined by the Board of Immigration Appeals (BIA)—the highest administrative tribunal for interpreting and applying immigration law—through case-by-case adjudication, with the federal courts generally deferring to the BIA's interpretation so long as it is based on a "permissible construction" of the INA. In other cases, such as with the meaning of well-founded fear , the executive branch has interpreted particular language within the INA's definition of refugee through the promulgation of regulations. These regulatory interpretations are also afforded deference by the courts insofar as they are based on "permissible" constructions of the statutory language. In yet other cases, Congress has enacted legislation that affects how particular terms within the refugee definition are construed. Perhaps the most notable example of this is the REAL ID Act of 2005 ( P.L. 109-13 ), which amended the INA to require that a protected ground (e.g., race, religion, nationality) "was or will be at least one central reason" for the persecution.

The application of the INA's definition of refugee to aliens seeking asylum in the United States due, in whole or in part, to gang-related violence is, thus, complicated because it involves consideration of an extensive body of statutes, regulations, and administrative and judicial decisions. In addition, the federal courts of appeals can sometimes have differing opinions on whether particular interpretations advanced by the BIA are "permissible" and, thus, entitled to deference. Such differences of opinion can result in aliens' applications for asylum faring differently depending upon the territorial jurisdiction in which they are made (e.g., some courts are willing to consider former gang members as a particular social group, while others are not).

"Persecution"

"Persecution"—or a well-founded fear thereof, discussed below (see "Well-Founded Fear" )—underlies international and domestic protections for refugees and asylees. However, neither the Convention and Protocol nor the INA defines persecution . Instead, what have been described as the "working parameters of this term" for purposes of U.S. law were established by the BIA in its 1983 decision in Matter of Laipenieks . There, the BIA characterized persecution as

[t]he infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.

Subsequent decisions built upon this formulation by distinguishing harm that rises to the level of persecution (i.e., harm inflicted "in a manner condemned by civilized governments") from harm that does not, and by clarifying when the actions of private persons can be said to be "under government sanction."

In distinguishing between persecution and other types of harm, the BIA and the courts have contrasted the "extreme" or "serious" nature of the harm that constitutes persecution with harassment, discrimination, and other "lesser" harms that do not rise to the level of persecution. For example, in its 2013 decision in Martinez-Beltrand v. Attorney General , the U.S. Court of Appeals for the Third Circuit upheld the denial of asylum to an alien who claimed to have been persecuted by gang members in Honduras on the grounds that the alien had suffered "harassment" that "did not rise to the level of persecution." The alien alleged that she had been persecuted in the past by gang members coming to the funeral home her family operated, and asking her to give them money and join the gang. Thereafter, gang members allegedly called the funeral home periodically, asking for money. However, the Third Circuit likened these harms to "minor assaults that do not require medical care" or "unfulfilled threats," both of which are generally seen as insufficient to show persecution. It also viewed the gang's actions as "attempt[s] to extort money" and, thus, "ordinary criminal activity" of the sort that "does not rise to the level of persecution necessary to establish eligibility for asylum."

The U.S. Court of Appeals for the Tenth Circuit relied upon similar logic in its 2013 decision in Cosenza-Cruz v. Holder , where the extortion attempts and threats experienced by two brothers in Guatemala were seen as ordinary criminal activity, not persecution. The Tenth Circuit also emphasized that the alien petitioners were not "targeted" or singled out for harm on a protected ground, a factor that some courts, in particular, note in their discussions of persecution. However, the link between the harm suffered and any protected grounds is arguably better considered in conjunction with the "nexus" requirement in the refugee definition (see "On Account of" ), and USCIS has explicitly instructed asylum officers to "separate the analysis of motivation from the evaluation of whether the harm is persecution, in order to make the basis of their decision as clear as possible."

The harm suffered or feared must also have "some connection to governmental action or inaction." In cases where the government is not directly responsible for the harm, this means showing that the government knowingly tolerates the harm inflicted by private parties, or is unwilling or unable to control the actions of these parties. If such toleration, or unwillingness or inability to control, is found, the BIA and the federal courts may recognize harm arising to the level of persecution. However, the BIA and the courts are sometimes reluctant to find an inability or unwillingness to control the actions of private persons based solely on the fact that the government's efforts have been ineffective. For example, in its 2005 decision in Romero-Rodriguez v. U.S. Attorney General , the U.S. Court of Appeals for the Eleventh Circuit upheld the denial of asylum to two brothers who fled alleged gang recruitment in Honduras. In so doing, the court relied, in part, on the immigration judge's finding that the "Honduran government was attempting to control the lawlessness that exists in that country." The U.S. Court of Appeals for the Seventh Circuit relied upon similar logic in its 2004 decision in Lleshanaku v. Ashcroft . There, the court upheld the denial of asylum to a woman who claimed to have been trailed and threatened by gang members in Albania on the grounds that she alleged "criminal racketeering [of a type] that almost all governments have trouble controlling, as opposed to the type of government conduct on which most grants of asylum are based."

Both elements within the standard construction of persecution —i.e., the seriousness of the harm and government action or inaction—can be difficult to show in gang-related cases, as the foregoing examples illustrate. Indeed, as one court noted, the very pervasiveness of gang activity within a society can make a finding of persecution less likely, insofar as gang actions can be characterized as "widespread violence" or "ordinary criminal activity."

"Well-Founded Fear"

A showing of past persecution gives rise to a rebuttable presumption that the alien has a well-founded fear of future persecution. Otherwise, absent a showing of past persecution, the alien must show that he or she has a "well-founded fear" of future persecution in order to be eligible for asylum in the United States. Federal regulations further provide that applicants for asylum have a well-founded fear of persecution if

(A) [t]he applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion; (B) [t]here is a reasonable possibility of suffering such persecution if he or she were to return to that country; and (C) [h]e or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.

As these regulations suggest, the test for whether aliens have a well-founded fear of persecution is partly subjective in that it focuses upon whether the alien actually "has a fear of persecution." The subjective element is satisfied if the applicant's fear of persecution is genuine. A genuine fear of persecution must be the applicant's "primary motive" in seeking asylum, but it need not be the only motive.

On the other hand, the test for a well-founded fear of persecution is also objective in that there must be a "reasonable possibility" that the alien would suffer persecution if returned to his or her home country. The regulations do not define what is meant by a reasonable possibility of persecution. However, the Supreme Court helped establish the meaning of this term with its 1987 decision in INS v. Cardoza-Fonseca , which found that "[o]ne can ... have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place." Following the Cardoza-Fonseca decision, the BIA emphasized that determinations as to whether a fear is well-founded ultimately rest not on the statistical probability of persecution occurring, but on whether a reasonable person in the alien's position would fear persecution. Federal courts have generally deferred to the BIA on the meaning of reasonable possibility , with some courts opining that a reasonable possibility of persecution can exist where there is as little as a one-in-ten chance of the feared harm occurring.

A well-founded fear of persecution has been found to be lacking in some gang-related asylum cases, often in cases where past harms are not viewed as persecution. The genuineness of the alien's fear is often not in doubt. However, such fear can be seen as unreasonable in light of the circumstances.

"On Account of"

The refugee definition's proviso that the persecution be "on account of" a protected ground has been construed to require that there be a "nexus" between the harm that the alien has incurred or fears and the alien's race, religion, nationality, political opinion, or membership in a particular social group. To establish the requisite nexus, the alien must provide some evidence (direct or circumstantial) that the persecutor is motivated to persecute the victim because the victim possesses—or is believed to possess—the protected characteristic. The alien need not prove the actual, exact reason for the persecution. Rather, he or she need only establish facts on which a reasonable person would fear that the danger "arises on account of ... race, religion, nationality, membership in a particular social group, or political opinion." However, as a result of amendments made to Section 208 of the INA by the REAL ID Act of 2005 ( P.L. 109-13 ), the alien must also show his or her race, religion, nationality, political opinion, or membership in a particular social group "was or will be at least one central reason" for his or her persecution. A central reason has been construed to mean a reason that is more than "incidental, tangential, superficial, or subordinate to another reason for harm." A central reason need not be the only reason, or even a "primary" reason, though. So-called "mixed motive" claims—where the persecutor is motivated by the alien's possession of a protected characteristic as well as other factors (e.g., greed, revenge)—are still possible post-REAL ID Act.

Lack of the requisite nexus between the alleged persecution and a protected ground is another reason that gang-related asylum claims may fail. For example, in its 2011 decision in Bueso-Avila v. Holder , the Seventh Circuit upheld the executive branch's denial of asylum to an alien who claimed to have been persecuted by gangs in Honduras because of his Evangelical Christian religion. The Seventh Circuit did so, in part, because it viewed the executive branch's conclusion that the gang was either unaware of or unconcerned about the alien's religious beliefs as "legitimate" in light of "all the evidence" presented by the alien. The U.S. Court of Appeals for the First Circuit relied upon similar logic in its 2012 decision in Carreanza-Vargas v. Holder . There, in upholding the executive branch's denial of asylum to alien who claimed to fear persecution by gangs in El Salvador based on his membership in the particular social group of "former police and army members who fear harm by gangs," the First Circuit noted that the evidence supported the conclusion that the gangs were motivated by economic gain, not the alien's membership in any particular social group. As these examples suggest, conventional understandings of gangs' motives can shape the outcomes in these cases, with courts upholding denials of asylum where the evidence can be seen as demonstrating "typical" gang activities (e.g., robbery, extortion, recruitment of new members).

Protected Grounds

The refugee definition encompasses five so-called protected grounds: race, religion, nationality, political opinion, and membership in a particular social group. Gang-related asylum claims have been made on various grounds, including religion and political opinion. The most common ground, however, has arguably been membership in a particular social group, a construct which has been described as "an especially contested and problematic area in asylum law." Particular social group is the ground upon which all asylum claims not based on race, religion, nationality, or political opinion must be made. However, the executive branch and the federal courts have been reluctant to treat "particular social group" as a "catch-all," permitting anyone who experiences harm anywhere in the world to obtain refugee status or asylum in the United States. This reluctance would appear to underlie, in part, the evolution in the executive branch's construction of the term particular social group between 1985 and the present, a development which some commentators have suggested underlies the failure of many gang-based asylum claims.

Evolution in the Construction of Particular Social Group

Because there is no statutory or regulatory definition of particular social group , the BIA has established the meaning of this term through case-by-case adjudication, beginning with its 1985 decision in Matter of Acosta . The alien in Acosta claimed to fear persecution in El Salvador because he co-founded and actively participated in a cooperative organization of taxi drivers—known as COTAXI—that refused to participate in work stoppages allegedly requested by anti-government guerillas. However, the immigration judge denied the alien asylum because he found the alien's testimony insufficient to prove the alleged harm. The BIA affirmed this denial on other grounds, including on the grounds that the particular social group proposed by the alien—"COTAXI drivers and persons engaged in the transportation industry of El Salvador"—was not cognizable under the INA. The BIA reached this conclusion by resorting to the doctrine of eiusdem generis in construing the meaning of the words "particular social group." In keeping with the doctrine's holding that "general words used in an enumeration with specific words should be construed in a manner consistent with the specific words," the BIA considered "particular social group" in conjunction with "race," "religion," "nationality," and "political opinion," and noted that each of the other grounds "describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed." Thus, it concluded, "particular social group" is to be construed as describing a "group of persons all of whom share a common, immutable characteristic." According to the BIA, this characteristic can be "innate," such as "sex, color, or kinship ties," or based on "shared past experiences," such as former military leadership or land ownership. However, it cannot be based on something that is "not immutable," and the BIA viewed driving a taxi or refusing to participate in work stoppages as not immutable.

The federal courts generally deferred to the BIA's construction of particular social group in Acosta , finding that it constituted a "reasonable" and "permissible" interpretation of an ambiguous statutory term. Similarly, the UNHCR incorporated Acosta 's construction of this term into its own definition of particular social group , suggesting that it viewed the BIA's interpretation as consistent with the Convention and Protocol.

Despite this deference, the BIA revisited and reformulated the meaning of particular social group in its 2006 decision in Matter of C-A- . There, the BIA rejected aliens' challenge to the denial of their asylum application after finding that "noncriminal informants"—specifically, informants against the Cali drug cartel in Columbia—do not constitute a particular social group for purposes of the INA. In so finding, the BIA retained Acosta 's requirement that members of a particular social group share a common, immutable characteristic, but emphasized the further requirement that the group be "recognizable" as such (i.e., possess "social visibility"). The BIA did so, in part, because it viewed the specific social groups based on innate characteristics, recognized pursuant to previous applications of the standard articulated in Acosta , as "generally easily recognizable and understood by others to constitute social groups." In contrast, it viewed the proposed social group of noncriminal informants as different because

the very nature of the conduct at issue is such that it is generally out of the public view. In the normal course of events, an informant against the Cali cartel intends to remain unknown and undiscovered. Recognizability or visibility is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.

The BIA also noted that the proposed grouping of noncriminal informants was "too loosely defined to meet the requirement of particularity," since it could include persons who "passed along information concerning any of the numerous guerrilla factions or narco-trafficking cartels currently active in Colombia to the Government or to a competing faction or cartel."

Two years later, in its 2008 decision in Matter of S-E-G- , the BIA applied the social visibility and particularity requirements to three siblings who had fled alleged persecution by the MS-13 gang in El Salvador. There, in affirming the immigration judge's denial of asylum, the BIA found that the siblings' proposed group of "Salvadoran youth who have been subjected to recruitment efforts by MS-13 and who have rejected or resisted membership based on their own personal, moral, and religious opposition to the gang's values and activities" lacked both social visibility and particularity. As to social visibility, the BIA emphasized that the purported group was not recognized as a discrete class of persons by Salvadoran society. Similarly, as to particularity, the BIA noted that the group lacked well-defined boundaries, such that it could be readily determined who fell within, or outside of, the group. Further, the BIA noted that the youths' attempt to limit their proposed group by claiming it was comprised of male children who "lack stable families and meaningful adult protection" and "who are from middle and low income classes" relied upon "amorphous" characteristics, as "people's ideas of what those terms mean can vary."

The BIA's decisions in Matter of C-A- and Matter of S-E-G- prompted a somewhat different response than its earlier decision in Matter of Acosta . While most federal courts of appeals deferred to the BIA's revised interpretation of particular social group , two did not. First, the Seventh Circuit rejected the "social visibility" requirement in its 2009 decision in Gatimi v. Holder , in part, on the grounds that it was inconsistent with the BIA's prior decisions, and the BIA did not articulate a principled reason for the change. The Seventh Circuit also indicated that it viewed the BIA's discussion of social visibility as referring to literal or ocular visibility, an interpretation that has elsewhere been suggested to constitute an impermissible construction of the INA. Subsequently, the Third Circuit relied on similar reasoning as to social visibility—and also rejected the particularity requirement—in its 2011 decision in Valdiviezo-Galdamez v. Attorney General . The Third Circuit did so, in part, because it viewed particularity as "little more than a reworked definition" of the "discredited requirement of 'social visability.'" The UNHCR also objected to the BIA's construction of particular social group in Matter of C-A- and its application to gang-related asylum claims in Matter of S-E-G -. Among other things, the UNHCR filed an amicus brief with the BIA in Matter of Thomas in 2007, calling for the BIA to eliminate the "social visibility" and "particularity" requirements and return to the "common, immutable characteristic" standard of Acosta . The UNHCR also petitioned Attorney General Holder in 2009 to certify Matter of S-E-G- to himself for review. In both cases, the UNHCR asserted that the executive branch's construction of particular social group was inconsistent with UNHCR guidance and U.S. obligations under international law.

Subsequently, the BIA revisited and reformulated the construction of particular social group once more in its 2014 decisions in Matter of W-G-R- and Matter of M-E-V-G- . In these two decisions, issued on the same day, the BIA retained the requirements that particular social groups possess common, immutable characteristics and particularity, but renamed the former "social visibility" requirement as "social distinction." In so doing, the BIA emphasized that it viewed social distinction as

referr[ing] to recognition by society, taking as its basis the plain language of the Act—in this case, the word 'social.' To be socially distinct, a group need not be seen by society; it must instead be perceived as a group by society. Members of the group may be visibly recognizable, but society can also consider persons to be a group without being able to identify the members by sight.

The BIA also emphasized that it viewed the requirement of social distinction as consistent with prior BIA precedents recognizing "young tribal women who are opposed to female genital mutilation," "homosexuals in Cuba," and "former national police members," among others, as particular social groups. Further, while acknowledging that its approach differs from UNHCR guidelines, the BIA noted that its approach is similar to that adopted by the European Union, which "also declines to follow the ... definition set forth by the UNHCR."

It remains to be seen whether federal courts of appeals will defer to the BIA's "social visibility" requirement in determining what constitutes a particular social group for purposes of refugee status and asylum. However, the evolution in the construction of the term particular social group arguably helps explain the limited success of gang-related asylum claims to date. Especially since the BIA's decision in Matter of C-A- , these claims have generally failed, in part, because the various social groups articulated by individual aliens are seen as lacking social visibility and/or particularity. Some commentators have suggested that the BIA's recent shift from "social visibility" to "social distinction" could potentially make it more difficult for aliens to obtain asylum by requiring that aliens produce sociological studies or other evidence demonstrating that the alien's home society recognizes the group as distinct. On the other hand, given the deference that the courts have generally afforded to the executive branch's construction of particular social group , this term and/or social distinction could conceivably be reinterpreted by the executive branch in the future to make it easier for aliens to obtain asylum on account of membership in a particular social group.

Specific Social Groups

While the particular social groups proposed in individual cases vary somewhat in their specific formulations, they can generally be seen as involving one of four broad categories: (1) persons resistant to gang recruitment; (2) former gang members; (3) witnesses and informants against gangs; and (4) the family members of persons in the foregoing groups. Most courts have not considered these proposed groupings as constituting particular social groups for purposes of granting asylum, although groups involving former gang members, witnesses or informants against the gangs, and family members may be cognizable as particular social groups in certain jurisdictions.

Persons Resistant to Gang Recruitment

In a number of cases, courts have upheld the denial of asylum to aliens based on their purported membership in particular social groups made up of persons who are targeted for or resist gang recruitment, generally because the courts view the proposed group as lacking both social visibility (now, distinction) and/or particularity. For example, in its 2012 decision in Mayorga-Vidal v. Holder , the First Circuit upheld the denial of asylum to an alien who claimed to fear persecution due to his membership in the group of "young Salvadoran men who have resisted gang recruitment and whose parents are unavailable to protect them." The First Circuit did so, in part, because it found no evidence in the record suggesting that Salvadoran society viewed the purported group as a "discrete class of persons." It also deferred to the BIA's view that the proposed grouping of "youths who resist gang recruitment" was "too subjective and open-ended" to meet the particularity requirement since it represented a "large, diffuse portion of society." It gave similar deference to the BIA's view that "lack of parental protection" failed the "particularity" requirement, as there are no "objective criteria" to define what it means to lack parental protection. The U.S. Court of Appeals for the Tenth Circuit relied upon similar logic in upholding the denial of asylum based on membership in the proposed social group of "El Salvadoran women between the ages of 12 and 25 who have resisted gang recruitment" in its 2012 decision in Rivera-Barrientos v. Holder . There, the court opined that the proposed group could potentially be seen as possessing particularity, as the meaning of each of its terms is unambiguous. However, it found that the group lacked social visibility (now social distinction) since there was no evidence that "women between the ages of 12 and 25 who have resisted gang recruitment are perceived to be a social group by Salvadoran society."

These and other cases suggest that obtaining asylum based on membership in a group of persons targeted for, or resistant to, gang recruitment may be complicated by pervasiveness of gang violence in certain societies. Because the gangs are generally seen as targeting everyone who seems a likely candidate for membership, regardless of their personal attributes or associations, it can be hard to show that persons who have been targeted for or refused gang recruitment are seen as a discrete group by society. It can also be hard to show that clear boundaries demarcate persons who have been targeted for or refused gang recruitment, particularly since the BIA and the federal courts have generally taken the view that a particular social group cannot be defined "circularly" by the fact that its members have been targeted for persecution.

Former Gang Members

Granting asylum to aliens based on their membership in groups made up of former gang members is more complicated in that several federal courts of appeals have evidenced at least some willingness to view former gang members as a particular social group, while others have suggested that granting asylum to those who belong to organizations that have perpetrated acts of violence or other crimes in their home countries is contrary to the humanitarian purposes of asylum. For example, in its 2010 decision in Urbina-Mejia v. Holder , the Sixth Circuit found that being a member of a gang is a characteristic that is "impossible to change, except perhaps by rejoining the group." The Seventh Circuit relied upon similar logic in its 2009 decision in Benitez Ramos v. Holder , finding that "[a] gang is a group, and being a former member of a group is a characteristic impossible to change." However, neither decision took into account the social visibility (now, distinction) and particularity of the group in reaching this conclusion, and other tribunals have taken the opposite view. The Ninth Circuit, for example, has found that former gang members are categorically excluded from consideration as a particular social group on the grounds that recognizing former members of "violent criminal gangs" would "undermine the legislative purpose of the INA." The First Circuit has similarly quoted, with apparent approval, the BIA's view that "[t]reating affiliation with a criminal organization as ... membership in a social group is inconsistent with the principles underlying the bars to asylum and withholding of removal based on criminal behavior," discussed below ( " Bars to Asylum ").

Whether a claim to asylum based on former gang membership succeeds may thus depend, in large part, upon the jurisdiction in which it is made. The BIA's decision in 2014 in Matter of W-G-R- could potentially also complicate matters. The alien in that case alleged membership in a particular social group made up of "former members of the Mara 18 gang in El Salvador who have renounced their gang membership." In upholding the immigration judge's denial of asylum to the alien, the BIA left open the possibility of successful gang-related claims. However, it suggested that, even when former membership is an immutable characteristic that defines a particular social group, the group will "often need to be further defined with respect to the duration or strength of the members' active participation in the activity and the recency of their active participation if it is to qualify as a particular social group." It also emphasized that showing that a group of former gang members is socially distinct will require documentation about the treatment or status of former gang members in society, not just documentation about gangs, gang violence, and treatment of current gang members.

Witnesses or Informants against Gangs

Witnesses and informants against gangs have also been recognized as comprising a particular social group in some cases, the most notable of which is arguably the decision by the en banc Ninth Circuit in 2013 in Henriquiz-Rivas v. Holder . There, a majority of the Ninth Circuit reversed a BIA decision denying asylum to an alien who claimed to fear persecution on account of her membership in a group made up of "person[s] who testified in a criminal trial against members of a gang" in El Salvador. The majority did so because it viewed the BIA's decision as inconsistent with Matter of C-A- , wherein the BIA had contrasted the lack of social visibility of noncriminal informants with the social visibility of "those who testify against cartel members." The majority also suggested that the perception of the persecutor may matter more in determining the cognizability of particular social groups than that of society generally, since those who are persecuted are persecuted "precisely because the persecutor recognizes the object of his persecution." This view—which is not shared by all other tribunals —would seem to have informed the majority's approach insofar as gangs may well perceive persons who testify against them as a "group" even if the rest of society does not.

However, as Judge Kozinski's dissent in Henriquiz-Rivas illustrates, not all courts would necessarily adopt the view that witnesses against the gangs make up a particular social group. Judge Kozinski's concerns centered upon the majority's reading of Matter of C-A- and, particularly, whether the BIA, in fact, found that witnesses are a cognizable social group in Matter of C-A- , or whether its statement contrasting witnesses with informants is best viewed as a nonbinding dictum . He also noted that defining a particular social group based on its visibility to the persecutors runs the risk of defining the group circularly, based on the fact that its members have been subjected to harm.

Other cases involving groups of witnesses or informants have failed on nexus grounds, because the persecutors are seen as motivated not by the alien's membership in a particular social group, but by personal retribution (see "On Account of" ).

Family Members of Persons in the Foregoing Categories

Groups based on families were among the first social groups recognized by the BIA, and family has since been described as a "prototypical example" of a particular social group. In keeping with this view, some courts have been willing to consider the families of persons in some way affected by gang violence as a cognizable social group for purposes of asylum. Other courts have been more skeptical. Whether the group members share a common, immutable characteristic (i.e., family membership), and whether the group is defined with particularity, have generally not been at issue. The requirement of social visibility (now social distinction), in contrast, has posed greater difficulties, since the family group must be one that is recognized as a discrete group. Such recognition from the alien's society at large can be hard to come by unless the family in question is particularly famous or otherwise well known, although it could potentially be more easily shown when the focus is upon the perceptions of the alleged persecutor.

A perceived lack of a "nexus" between the feared persecution and the alien's belonging to a particular family could also pose issues.

Bars to Asylum

The INA also articulates certain bars to asylum, expressly prohibiting the executive branch from granting asylum to aliens who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, political opinion, or membership in a particular social group. Also barred are aliens who may otherwise meet the requirements of the refugee definition, but (1) having been convicted of a "particularly serious crime," constitute a danger to the U.S. community; (2) committed a "serious nonpolitical crime" outside the United States prior to arriving here; (3) are reasonably believed to be a danger to U.S. security; (4) are inadmissible or deportable on certain terrorist grounds; or (5) were firmly resettled in another country prior to coming to the United States. The INA further provides that aliens who have been convicted of "aggravated felonies"—which the INA defines to mean certain specified crimes (e.g., murder, rape, sexual abuse of a minor), as well as "crimes of violence" for which the term of imprisonment is at least one year —are considered to have been convicted of particularly serious crimes.

These bars can present potentially significant issues for former gang members, as to whom there could be "serious reasons" to believe they have committed "serious nonpolitical crimes" outside the United States. Those who are not former gang members are generally less likely to be affected by such bars.