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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Two New Gang-Based Asylum Victories

by David L. Cleveland

To say that there is judicial hostility to asylum applicants who flee gangs in Central America is an understatement. See: De Paula v. U.S. Attorney General, 2008 U.S. App. LEXIS 5663 (11th Cir. 2008), Flores-Coreas v. Mukasey, 2008 U.S. App. LEXIS 2403 (1st Cir. 2008), Marquez-Perez v. Mukasey, 2008 U.S. App. LEXIS 4398 (5th Cir. 2008), Hernandez-Donis v. Attorney General, 2007 U.S. App. LEXIS 5648 (3rd Cir. 2007), In re Anonymous, (BIA, April 17, 2008).

Nonetheless, Immigration Judges in Boston and Arlington, VA recently granted relief to applicants.

November 2007 Decision by IJ Klein in Boston

IJ Eliza Klein granted asylum to a woman from El Salvador, who was threatened with death and was beaten by the MS-13 gang. This 12-page opinion, dated November 20, 2007, is available at http://www.bibdaily.com.

Respondent testified that in July 2005 her cousin was found dead in a ditch. Because he was "covered with stab wounds," she believed he had been killed by gang members. No one reported the crime to the police "out of fear." [Opinion at page 2]

The family held a wake, attended by Respondent's father, who stated the gang members who did the crime "would pay for justice," and that he was going to report them to the police. A few days later, the father received a letter threatening him with death if he filed a police report. The letter bore the emblem of a gang known as "MS-13." The father did not file a police report, and fled. A short time later, three gang members came to Respondent's house and told Respondent that if the father did not return, they would kill Respondent. Still later, the same men returned and asked where the father was. When she said she did not know, the men threw her on the ground and beat her with their fists and feet. She suffered a "loose bone" near her left ankle; however, she did not seek official medical treatment for her injury. She did not report anything to the police.

Within a month, the same men returned, and told Respondent they would not harm her if she joined their gang. Two weeks later, she fled her country, having reported nothing to the police. The gang demanded money from the mother. Respondent talks to mother via cell phone, and sends money to mother at times.

Respondent was the only witness at her hearing. She introduced less than ten exhibits into evidence. There was no corroboration of her "loose bone" injury, no letter from any family member, and no "death threat" letter. Her asylum application omitted the account of being asked to join the gang. She explained the omission by stating that "she initially was ashamed to tell her lawyer about their request to join the gang because women who join gangs are expected to have sexual relations with the male [gang members]." [Opinion at page 9].

One Oral Death Threat Contitutes Persecution

The IJ ruled that an oral death threat "constitutes persecution." [Opinion at page 10]. The one-time beating of Respondent is "harm that rises to the level of persecution." Id.

Respondent was Targeted on Account of her Imputed Political Opinion

Respondent's father "had expressed opposition to" the gang's illegal activities and to "the system of impunity that exists in [El Salvador]." Id. So, "Respondent was targeted on account of a political opinion, that of her father, imputed to the Respondent." Id.

Respondent was also Targeted Because of her Mebership in Her Family, Which is a Particular Social Group

The gang said they would kill Respondent in her father's place if he did not return. They beat her when she told them she did not know where he was. "There is no evidence in the record that the [gang] threatened and attacked Respondent for any reason other than the fact that she was the daughter of a man who had made anti-[gang] statements." Id.

The government of El Salvador cannot control the gangs. The 2006 Department of State report indicates that there is "widespread violent crime, including gang-related violence, impunity and corruption." [Opinion at page 11]. Respondent "has submitted documentary evidence that [the] police have become involved with organized crime." Id. "Given these circumstances, the Respondent's unwillingness to report the [gang] to the local police appears reasonable." Id.

Comments of the Author

Other Immigration Judges might view the evidence differently, using these reasons:

There was no corroboration of the story, and no explanation for the lack thereof. Did respondent even try to get letters from her family? Respondent sends money to mother; why can't mother send a letter of corroboration back to respondent?

Suggestion: tell your client to try to get a letter of corroboration from each member of her family. Tell your client to spend time and money to get the letters.

Does Respondent have a political opinion? Did she ever express it in her country? Did she ever express it here in the United States?

Respondent was a female who was "living in the area." Lopez-Soto v. Ashcroft, 383 F.3d 228, 233 (4th Cir. 2004). She was needed for her "services." She was targeted for those reasons, not because of her father.

The gang members merely have a "personal vendetta." Menjivar v. Gonzales, 416 F.3d 918 (8th Cir. 2005).

IJ Klein 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.

March 2008 Decision by IJ Schmidt in Arlington, VA

IJ Paul Schmidt granted asylum to a 17-year-old male from Honduras, who was shot at by the MS-13 gang. This 12-page opinion, dated March 20, 2008, is available at http://www.bibdaily.com.

When Respondent was about 14 years old, members of the Mara Salvatrucha ("MS") gang asked him to join. Respondent refused, stating his church told him not do so. Respondent moved to a town about three hours away, and lived there for a year. When he returned, the gang asked him again to join. The gang said that because of his age, the police would never suspect him; also, because he was skinny, he could help the gang by fitting into small places. Respondent refused, because he was a member of the Pentecostal Church.

The gang approached Respondent several times, with guns drawn, and made threats. Respondent's uncle protected him, and told the gang to leave Respondent alone. Then, the gang shot and killed the uncle. Later, the gang shot at Respondent, grazing his shin, leaving a permanent scar.

Respondent and his father reported these events to the police.

Respondent's friend received a threat from the gang: "Join us in seven days or be killed." The friend did not join; he was later shot in the head at close range and killed. The same threat was made to respondent: the gang pointed a gun and forced Respondent to kneel down. Respondent was told to join the gang in seven days or be killed. Respondent then fled his country.

Respondent submitted affidavits from his parents, a Honduran Justice of the Peace, an American social worker [discussing Respondent's Post Traumatic Stress Disorder], his pastor in Honduras, and from a law professor in Florida.

The 2006 report from the Department of State indicates there is "government corruption, impunity for violators of the law, and virulent gang violence…"[Opinion at page 8] That report indicates that "gang members kill youth with impunity." Id.

The DHS argues that Respondent should have submitted a death certificate for his uncle, and that such a document is reasonably available. However, Respondent explained that his parents' lack of education "made it very difficult for his attorney to explain to them the nature of these proceedings and why such documentation was necessary, and that it was a serious challenge to obtain the documentation that the Respondent did submit to the Court." [Opinion at page 9].

Being Shot at and Being Threatened by Men with Guns is Persecution

The gang shot and killed the uncle and friend. They shot at, and hit Respondent. Death threats from such a group are real indeed. Respondent has suffered past persecution. He also has a well-founded fear of future persecution.

Respondent was Targeted on Account of his Religion

Respondent "frequently expressed his religious convictions to the MS members, telling them that he cannot join a gang because it is wrong and his church will not allow him to do it." Moreover, MS members told Respondent that church is 'worthless' and 'trash.'" [Opinion at page 10] The MS members "sought to overcome his religious convictions by the infliction of harm." Id.

Internal Relocation is not Reasonable

Gang violence "is prevalent throughout the entire country of Honduras….Respondent, being only seventeen years old, would have great difficulty relocating without family." [Opinion at page 11]

Congratulations to Christina Wilkes, of Ayuda, Inc., of Washington DC, who argued the case.

Comments by the Author

The DHS has filed a Notice of Appeal.


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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