- individuals at risk of, or who refuse, recruitment, such as young men and adolescent boys of a certain social status;
- individuals, such as young women and adolescent girls, who refuse sexual demands by gangs, including for prostitution and trafficking purposes, or to become sexual property of gangs;
- business owners and others unable or unwilling to meet extortion or other unlawful demands for money or services by gangs;
- witnesses of crimes committed by gangs, or individuals who have reported such incidents to the authorities who subsequently become vulnerable to violence as a form of deterrence or retribution;
- law enforcement agents may become targets because of their efforts to combat gangs;
- NGO workers, human rights activists, lawyers and participants in community- or church-based groups who oppose gangs, thus becoming the targets of intimidation tactics and violence by gangs;
- other individuals who are, or are perceived to be, a threat to gangs or as not conforming with their practices, including ethnic and sexual minorities.
2. Former or current gang members
3. Victims and critics of State’s anti-gang policies and activities
4. Family members
5. Children and women especially vulnerable to a range of harms perpetrated by gangs.
Those fleeing gang-related violence must prove a “well-founded fear” or persecution on the basis of political opinion, race, religion, nationality or membership in a particular social group. In gang-related asylum claims it has not been difficult for claimants to show a “well-founded fear,” but is more difficult to show 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.
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. This takes place when persecution is knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection. Effective protection is not fulfilled by merely enacting a law prohibiting prosecution practices, as such practices may still be condoned or keep taking place. Protection is effective only when the authorities have both de jure and de facto capabilities to stop them.
Asylum has also 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 neighbourhoods.
In most gang-related claims, the persecution involves non-state actors. In 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 they cannot relocate because the gang has nationwide reach and organization. This has been easier to document in Central American gang cases since the countries are small compared to Russia or 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 to 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 their safety because of their “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, 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 the gang lifestyle. The applicant might have refused to join a gang because of their religious belief or conscience or was targeted after a religious conversion when trying to exit the gang. The UNHCR Guidance Note cites cases from the US, Canada and New Zealand that have offered guidance in cases of this kind (para 32).
Most gang-related asylum cases are made under the ground of a “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”. It normally comprises persons of similar backgrounds, habits, or social status. 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). There is no closed list of groups that constitute a particular social group, as social groups may evolve and change in nature and the potential risk they may suffer can change.
According to 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.
US courts have not accepted the single approach position and require both a finding of an “immutable or fundamental characteristic” and “social visibility.” Although relevant cases that had set the basis for asylum law in the US have recently been vacated, adjudications remain challenging and do not follow international law standards in a number of ways. Under international law, the size, cohesion, or diffusiveness of a particular social group is irrelevant. However, the Board of Immigration Appeals (BIA) and federal courts have established that “major segments of the population will rarely, if ever, constitute distinct social groups” (Matter of M-E-V-G-, 2014). By making this differentiation, the US is denying recognition to cognizable particular social groups under international law.
Here are some examples of particular social groups in gang-related cases that US courts or administrative bodies have mostly recognized ( UNHCR’s Views on Asylum Claims from Individuals Fleeing Violence by Gangs and Other Organized Criminal Groups in Central America and Mexico, 2020 ):
- Social groups based on gender and nationality
- Social groups based on gender and other characteristics
- Social groups based on sexual orientation and/or gender identity
- Social groups based on family or kinship
- Social groups based on relationships and status within them
- Social groups based on past experiences, such as being a former gang member
- Social groups comprised of individuals who testify against gangs or cooperate with law enforcement
- Social groups comprised of law enforcement involved in anti-gang activity
The following list includes examples of gang-related particular social groups that are considered viable under international law but have not necessarily received any, or significant, recognition in the US ( UNHCR’s Views on Asylum Claims from Individuals Fleeing Violence by Gangs and Other Organized Criminal Groups in Central America and Mexico, 2020 ):
- Social groups based on opposition to organized crime or recruitment into organized crime
- Social groups based on occupation
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, caste, colour, 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 ).
In the United States, the Board of Immigration Appeals (BIA) has accepted an alien’s status as a former member of a national police, a soldier or a government informant as an 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”:
Cases collected of unpublished opinions from pro bono attorneys 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 with 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 lacking “social visibility”.
Human trafficking is prohibited under the International Covenant on Civil and Political Rights and generally rises to the level of persecution. It encompasses forced prostitution and other forms of sexual exploitation, as well as forced labour or services, slavery or practices similar to slavery, and servitude or the removal of organs.
Some trafficked women or minors may have valid claims to refugee status under the 1951 Convention. The forcible or deceptive recruitment of women or minors for the purposes of forced prostitution or sexual exploitation is a form of gender‑related violence or abuse that can even lead to death. It can be considered a form of torture and cruel, inhuman or degrading treatment, not respecting human rights. The Guidance Note of Refugee Claims Relating to Victims of Organized Gangs includes “individuals, such as young women and adolescent girls, who refuse sexual demands by gangs, including for prostitution and trafficking purposes, or to become sexual property of gangs” as gang-resisters, listing them under typologies of victims of organized gangs.
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).
UNHCR stated in its Amicus Curiae Brief in Support of Petitioner O.L.B.D., petitioner, responding to the unfavourable resolution by U.S. courts to Matter A-B-, now vacant, that victims of domestic violence may qualify for asylum, on the one hand, on account of their membership in a particular social group. The Brief establishes that women in domestic relationships share common characteristics beyond their persecution (including gender alone or gender in combination with other characteristics related to relationship status). Sex has been established as a determining factor in belonging to a particular social group. Alternatively, other factors, for example, relationship status, may be unchangeable because of external, religious, cultural or legal constraints.
Moreover, the Amicus Curiae Brief establishes that victims of domestic violence must show that their membership in a particular social group is one factor in their persecution. As a consequence, states where combating the persecutory practices is ineffective or tolerated, particularly El Salvador, may be able to meet the “unwilling or unable” standard to grant asylum.
On the other hand, victims of domestic violence may also qualify for asylum based on the requirement of social perception. Being female “identifies them as a group in society, subjecting them to different treatment and standards in some countries”, “their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.”
It may be helpful to have an expert opinion from a psychologist on 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).
In UNHCR’s view, voluntary membership in organized gangs normally does not constitute membership of a particular social group within the meaning of the 1951 Convention. Because of the criminal nature of such groups, it would be inconsistent with human rights and other underlying humanitarian principles of the 1951 Convention to consider such affiliation as a protected characteristic. In such cases, it is important to take into account the circumstances under which the applicant joined the gang. An individual who has been forcibly recruited into a gang would primarily be considered a victim of gang practices rather than a person associated with crime. This applies in particular to young people who may have less capacity or means to resist gang pressures. However, even if gang association occurred on a voluntary basis, former gang members, including those who have engaged in, or have been convicted of, criminal activity, may constitute a particular social group under certain circumstances provided they have denounced their affiliation with the gang and credibly deserted from it. In such cases, it is important to assess whether the applicant is fleeing persecution or prosecution/punishment for a common law offense. It will also be necessary to consider whether any of the exclusion clauses apply.
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 are of a particularly violent nature, with the result that voluntary membership thereof may also raise a presumption of individual responsibility, the burden 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) Their 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 U.S. the Fourth Circuit of Appeals ruled in January 2021 in a 2-1 decision that former gang members from specific countries can qualify as members of “particular social groups” and, therefore eligible for asylum. The ruling rejects the standard set by BIA, also upheld by other courts, requiring the group to be “particular” under the Immigration and Nationality Act, a very strict and precluding list. According to the Board, former gang association “will often need to be further defined with respect to the duration or strength” of participation, and must be recognized as a “discrete class of persons” within a society. Fourth Circuit, however, stated that “what matters is not whether the group can be subdivided based on some arbitrary characteristic but whether the group itself has clear boundaries.”
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 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.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (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 they 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 (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.
For more cases, see the section below “ Withholding of Removal and the Convention Against Torture” under Case Law.
CASE LAW
UNHCR Interventions
Interventions before courts by UNHCR and other organizations are an important tool through which protection standards can be developed and a consistent application of refugee law fostered. Interventions before courts may take different forms, depending on the national or supranational context, including formal amicus curiae briefs, advisory opinions or letters to the court or parties involved, as well as public statements. Interventions by UNHCR are carried out in the exercise of its supervisory function.
See Amicus Curiae Brief here.
UNHCR’s interest in the decision was because the Board rested its decision on the former Attorney General’s decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which diverges from UNHCR’s authoritative interpretation of States’ obligations under the 1951 Convention and 1967 Protocol in several key respects.
In particular, the decision conflicts with UNHCR’s interpretations of (1) the definition of a “particular social group,” (2) the standard used to assess whether states are “unable or unwilling” to provide effective protection against non-state agents of persecution, and (3) the “nexus” requirement concerning whether persecution by non-state actors is “on account of” membership in a particular social group.
However, Matter of A-B- has now become vacant, and the previous case law is being applied as a consequence of the change in the United State’s political power and UNHCR’s pressure through amicus curiae among other resources.
UNHCR states the asylum claims of victims of gang-related violence are routinely rejected in Spain, with the authorities holding that persecution by criminal gangs (including in cases from Central America) is not connected to the grounds of the 1951 Convention refugee definition or subsidiary protection, as it is believed to relate to ordinary criminal activities and general insecurity.
Spanish authorities further argue that legislative measures adopted by El Salvador to tackle gang-related violence demonstrate their ongoing efforts to address the problem and that the authorities cannot be regarded as promoting or authorizing such acts. This approach does not assess the effectiveness of those measures or the capacity of the State authorities in the country of origin to effectively protect the persons concerned, believing rather that asylum-seekers could have sought state protection through the available remedies in their country of origin.
In some cases, Spanish authorities have relied on the internal flight alternative to reject the asylum claims in question, and concluded that the alleged persecution or serious harm is limited to a specific area and could have been avoided by moving to a different location in the country of origin. The above arguments are therefore used to dismiss all asylum claims from El Salvador, Honduras and Guatemala.
In light of all of the above, UNHCR is of the view that Article 2 and 3 ECHR violations can be perpetrated by non-state actors and the lack of procedural safeguards in accelerated procedures can give rise to a violation of Article 13 ECHR.
The European Court of Human Rights has yet not made a decision on the matter.
National case law
RRT Case No. 0906782, RRTA 1063, Australia, Refugee Review Tribunal (2009)
Case concerning an El Salvadorian who feared that if he were to return to El Salvador, he would 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).
Palma Lopez v The Minister of Citizenship and Immigration (2021)
The Refugee Protection Division (RDP) of the Immigration and Refugee Board of Canada denied the Salvadorian applicants’ refugee claims. Their eldest son was brutally killed by members of the El Salvador gang. The applicants feared that the Maras would also target the minor applicant for recruitment and that the rest of the family would be at risk for trying to stop it.
The RDP claimed the applicants failed to demonstrate a nexus and that they had not presented sufficient credible and trustworthy evidence to establish a personalized risk to their life or a risk of cruel and unusual treatment or punishment.
Nonetheless, the Minister of Citizenship and Immigration considered in 2021 that the RDP erred in failing to consider whether there was a well-founded fear of persecution because of the applicant being in a particular social group that is at risk of forced recruitment by the Maras. As a consequence, the matter was remitted back to the RDP.
Jose Henry Monge Contreras v Canada (2015)
Jose Henry Monge Contreras left El Salvador in 2005 and fled to Canada, where he requested asylum based on gang violence. He claimed he feared for his life as he had become a target of the gang Mara Salvatrucha (MS-13) after his uncle had become one of their leaders, he had witnessed the murder of his brother and he had later participated in an investigation that resulted in the arrest and imprisonment of three MS-13 members. His application was denied.
However, as a State party to the International Covenant on Civil and Political Rights and its Optional Protocol, Canada has accepted the Human Rights Committee’s competence to review individual complaints that may give rise to violations of the ICCPR.
As a consequence, in 2017 the Human Rights Committee reviewed Jose Henry Monge Contresas’ case and found that Canada did not appropriately weigh the information presented by Monge throughout the asylum process, and did not give adequate weight to evidence on both the general human rights situation in El Salvador, particularly concerning gang violence targeting witnesses, and the lack of protection for him and his family specifically by the Salvadoran authorities.
Canada and all States parties to the ICCPR have an obligation to refrain from extraditing, deporting, or removing from their territory a person that faces a risk of irreparable harm as contemplated by Article 6 (the right to life) and Article 7 (prohibition of torture and inhuman or degrading treatment) of the ICCPR. The Human Rights Committee decided that there had been a violation of the Covenant.
Banegas v The Minister of Citizenship and Immigration (2015)
This decision incorporates the UNHCR Guidelines for Gang-Related Refugee Claims and is about an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (IRPA) of a decision dated 2014 by the RPD, rejecting the Applicant’s claim to refugee protection under sections 96 and 97 of the IRPA.
The Court held that a Tribunal’s systematic denial of refugee protection for those who fall victim to gang attacks and recruitment attempts would lead to an absurd result and seem contrary to Parliament’s intent. This case will be useful for others seeking protection on similar grounds.
X v Canada (2009)
The Court recognized that “poor Haitian women with HIV/AIDS” can constitute a particular social group (cited in UNHCR Guidance Note).
Minister of Citizenship and Immigration v X (2007)
The decision established that 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).
Yoli v Minister of Citizenship and Immigration (2002)
The applicant refused to participate in the gang’s criminal activities. He witnessed a murder carried out by the gang 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).
Klinko v Minister of Citizenship and Immigration (2000)
The decision established that the applicant, who refused the advances of a gang because of their political or ideological opposition to the practices of gangs, and the gang is aware of their opposition, may be considered to have been targeted because of their political opinion (cited in UNHCR Guidance Note).
Refugee Appeal Nr. 76044 (2008)
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 (2003)
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 a result were suspected of betraying it). The Court allowed the appeal and remitted the appellant’s case to the Immigration Appeal Tribunal (IAT) to enable them to reconsider the sufficiency of the 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 nor 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.”
Before analyzing relevant case law, it is important to state that the US and Mexico, both of which also receive applications for asylum based on gang violence in Central America, are also parties to the ICCPR and bound to uphold and protect the rights within it. The United States , though, does not allow for the Committee to review individual complaints against it.
Gatimi, et al v Holder (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 (2009) holding that former gang membership is a cognizable social group for asylum purposes.
Santos‐Lemus v Mukasey (2008)
The 9th Circuit denied the petition for review upholding the Board of Immigration Appeals’ (BIA) 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 on his “anti-gang” political opinions, and his request for relief under the Convention Against Torture.
Matter of S‐E‐G‐ (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‐ (BIA 2008)
In this case, the first gang case involving the new BIA social visibility series, the stakes were higher because the Immigration Judge 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 Attorney General of the United States (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‐ (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 (2004)
The Court denied a Guatemalan gang member asylum petition. The 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 the 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 the petitioner was not persecuted “on account of” his family membership. Instead, the evidence supported the conclusion that the petitioner was being recruited and harassed because he was a teenage male living in Guatemala. The Court also agreed that the 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 (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.
Rranci v Attorney General of the United States (2008)
Nazmi Rranci, a native of Albania, seeked relief from an Immigration Judge’s order that he be removed from the United States. He petitioned the Court for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal and declining to reopen his case. The Court decided whether the BIA erred in holding that his case couldn’t be reopened on the ground of ineffective assistance of counsel. A sub-issue is whether an alien who served as a Government witness in the United States could 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 — the extent a United Nations Convention recently ratified by Congress affects removal in this case. The petition was granted and remanded to the BIA for further proceedings.
Amilcar‐Orellana v Mukasey (2008) upholding denial of the CAT claim based on gang violence in El Salvador and describing the government’s efforts to control gang activity.
Arteaga v Mukasey (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”.
Lopez-Soto v Ashcroft (2004) held that the Petitioner had met the 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.
