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Students In El Salvador Who Expressly Oppose Gang Practices And Values Are Members Of A "Particular Social Group" Leading To Asylum, Rules An Immigration Judge In Arlington, Virginia

by David L. Cleveland

IJ Paul Schmidt granted asylum to a brother and sister from El Salvador, who demonstrated a well-founded fear of future persecution at the hands of the Mara Salvatrucha ("MS-13") gang. This 15-page opinion, dated May 3, 2007, is available at

The 15-year-old sister testified that she felt uncomfortable living in the town of Sensuntepeque because many MS-13 members, with gang tattoos, were present. In May 2003, she was attacked and perhaps raped by MS-13 members. She did not report this event to the police, because she believed the police feared the gang. She then lived in the city of San Salvador for four months. She moved back to Sensuntepeque, where she only left the house to go to church and the market with her grandmother. In August 2004, a fire broke out at her house. She believes MS-13 was responsible for the fire, and she reported it to the police.

The testimony of the sister was corroborated by a medical report, which noted injuries from a beating, and which mentioned "peritoneal washing," which is consistent with her claim that she may have been raped. The sister also provided a psychological evaluation, which reported nightmares and "dissociation."

The 21-year-old brother testified that when he was eight years old, gang members tried to recruit him, but he refused. In his neighborhood, he witnessed MS-13 robbing and beating people; he testified that he believes such acts are morally wrong. After hearing what happened to his sister, the brother and a friend approached four gang members and asked why they wanted to abuse his sister. The gang members stated they can do what they want, and then they punched and kicked the brother for five minutes. The brother did not report this event to the police. The brother then lived in San Salvador, and returned to Sensuntepeque, where he rarely left the house.

The brother testified that "about a month ago, his friend told him that gang members would try to kill him if he returned."

The testimony of the brother was supported by an affidavit from the grandmother, and from two other persons, stating that a fire burned the home in 2004. IJ Schmidt noted that asylum is possible "even in cases when the Respondents do not testify credibly." [Opinion at page 3].

The Department of State {"DOS"] reports that El Salvadorian police have been "ineffective in responding to and controlling gangs." The DOS adds that crime in El Salvador is widespread and serious; gangs exercise influence even from inside prisons, gang victims have little recourse, the police are corrupt, and the judges are corrupt.

The DHS argued that affidavits from friends who witnessed the brother's encounter with the MS-13 gang in 2003 should have been presented. The brother stated that in 2003, he was very young, that there has been a lapse in time and that several of his friends have left Sensuntepeque. IJ Schmidt found the "omission is not fatal to Respondents' claims."

Students Who Expressly Oppose Gang Practices Form A "Particular Social Group"

IJ Schmidt ruled that the brother belongs to a "particular social group" of "young Salvadorian students who expressly oppose gang practices and values and wish to protect their family members against such practices." [Opinion at page 11.] The sister belongs to a particular social group of "young female students who are related to an individual who opposes gang practices and values." Id.

The brother publicly opposed MS-13 members after he believed they attacked his sister. This fact is irreversible and cannot be changed. The sister is related to her brother. This fact cannot be changed.

Both of the above social groups are "socially visible," and are readily identifiable in society, as required by Matter of C-A-, 23 I&N Dec. 951 (BIA 2006). The brother expressly and publicly opposed the gang. This is a "very unusual act;" even the police are afraid of the gangs. The brother is quite "visible" to the gang.

The social group of the brother is "delimited." While it is true that a large number of students oppose gangs, only a few are brave enough to exhibit the "relatively rare behavior" of opposing the gang directly and publicly.

No Past Persecution; However, There is a Fear of Future Persecution.

IJ Schmidt found that even viewed cumulatively, the past harms did not rise to the level of "past persecution." However, Respondents "face at least a ten percent chance of future persecution." The gang knows brother and sister. The MS gang "presents a significant and widespread threat to non-gang members in El Salvador….the record suggests a reasonable possibility that the gang will take further steps to punish Male Respondent's defiance, which may include attacks on the Female Respondent." [Opinion at page 13.]

On Account Of

There is a nexus between their well-founded fear of persecution and their membership in a particular social group. Gangs in El Salvador "deal with individuals who stand up to them with severe, and often deadly, violence." Id. "MS-13 gangs have murdered, and even beheaded, family members of individuals who challenge, defy, or otherwise anger them." [Opinion at Page 14]

The DHS maintains that since Respondents spent four months in the city of San Salvador without threats or harm, internal relocation is possible. However, El Salvador is a small country; gangs are everywhere; respondents survived only by living in "virtual hiding." Id. So, it is unreasonable to expect Respondents to internally relocate. 8 C.F.R. §1208.13(b)(2)(C)(ii).

Comments of the Author

I believe that many other Immigration Judges would view the evidence differently, using these reasons:

Some "ordinary criminals" merely acted out of "personal motives;" they just wanted "revenge." Castillo-Arias v. US Attorney General, 446 F.3d 1190 (11th Cir. 2006).

Young males who resist gangs are not members of a particular social group:

  • Ayala-Euceda v. Gonzales, 2007 U.S. App. Lexis 9814 (9th Cir. 2007);
  • Lopez-Monterroso v. Gonzales, 2007 U.S. App. Lexis 9866 (7th Cir. 2007).
The brother's failure to report his attack to the police seriously undermines the conclusion that his government cannot protect him. Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005); Lopez-Monterroso v. Gonzales, 2007 U.S. App. Lexis 9866 (7th Cir. 2007).

The continued presence of the siblings in the country, after the attacks, shows that the country is not really dangerous. Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2005). Why didn't the siblings flee the country immediately after May 2003? After living in San Salvador for four months, why not flee to the United States?

The gang did nothing to the siblings for over a year after May 2003; now it is the year 2007. The friend of the brother did not write a letter of corroboration about the alleged continued gang interest. Why not? The gang has forgotten about the siblings. There is no evidence that the gang is "still interested" in the siblings. Meza v. US Attorney General, 2007 U.S. App. Lexis 2288 (11th Cir. 2007); Chen v. Gonzales, 2006 U.S. App. Lexis 23664 (2d Cir. 2006); Malki v.Ashcroft, 2003 U.S. App. Lexis 17940 (7th Cir. 2003).

IJ Schmidt did not mention any of the above cases; your IJ might. So, I suggest you read the above cases, and learn how to distinguish them.

About The Author

David L. Cleveland, a staff attorney at Catholic Charities of Washington DC, was Chair of the AILA Asylum Committee from 2004-2005.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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