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Chief Of Asylum Division Rules That Former Gang Membership Can Be The Basis For A "Particular Social Group"

by David L. Cleveland

Joseph E. Langlois, Chief of the Asylum Division in the US-CIS, issued a three-page Memorandum dated March 2, 2010, declaring that, within the Seventh Circuit, former gang membership "may" form a "particular social group."

The Memorandum, addressed to "All Asylum Officer Staff," quotes with approval from Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009).


Mr. Ramos joined the Mara Salvatrucha gang in El Salvador at the age of 14. He remained a member until coming to the United States at the age of 23. Thereafter, he became a born-again Christian. He fears that if he were to return to El Salvador, the gang would kill him for refusing to rejoin. The BIA denied all relief; however, the Seventh Circuit reversed and remanded the case.

Reasoning of the Seventh Circuit

Ramos is a former gang member. He is not a current member. It is impossible to change history: he was a member from 1994 until 2003. This fact is immutable.

Congress did not intend to bar former gang members from constituting a particular social group. If it had wanted to, Congress could have enacted a mandatory bar for such people, as it did for persecutors. There is case law to the contrary: Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007). The Ninth Circuit stated that Congress could not have intended to offer asylum to violent criminals who assault people, traffic in drugs, and commit theft. However, Mr. Arteaga was still a member of the gang. The court in Arteaga did not consider the possibility that a person could be in a particular social group, yet still be denied relief for other reasons, such as having committed a "serious non-political crime;" [INA § 208(b)(2)(A)(iii)], or for having "participated in the persecution" of others.[INA § 208(b)(2)(A)(i).] .

The Arteaga court also did not acknowledge that the adjudicator has "discretion" to deny asylum to an eligible person. Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008).

No one argues that all former gang members should immediately and automatically be granted asylum. The narrow issue to be decided is simply whether former gang membership could be the basis for a particular social group.

Guidance to Asylum Offices from Mr. Langlois

The Memorandum states at Page 3 that within the Seventh Circuit, "former gang membership may form a particular social group if the former membership is immutable and the group of former gang members is socially distinct."

Outside of that circuit, Asylum Officers should keep in mind the January 12, 2007 Memorandum from Lynden Melmed to Lori Scialabba, which states that criminal activity, "past or present, cannot form the basis of a particular social group." Also, Asylum Officers should apply the guidance as set forth in the Asylum Officer Basic Training Class Lesson dated March 12, 2009 on "Nexus."

All Asylum Officers, regardless of jurisdiction, should note that past "gang-related activity may serve as an adverse discretionary factor that is weighed against positive factors."

Comments of the author

  1. Mr. Langlois was clearly impressed by the reasoning of the Seventh Circuit. That court remanded the case to the BIA, which might issue a new opinion in the coming months. Mr. Langlois did not waste any time waiting for guidance from the BIA.
  2. Mr. Langlois did not criticize the January 12, 2007 Memorandum from Lynden Melmed; nor did he endorse it. The Seventh Circuit certainly would disagree with it.
  3. Mr. Langlois refers to Lesson Plans published in March 2009 for the benefit of Asylum Officers. These plans are not available on-line, to the best of my knowledge. Other lesson plans are: see below. The Asylum Office should publish all of its lesson plans on line. Members of the bar could read and comment upon them, and perhaps persuade the Asylum Division to make corrections.
  4. Mr. Langlois and the Seventh Circuit note that a former gang member could be denied relief if he committed "serious non-political crimes" or if he was a "persecutor of others." To argue against these theories, lawyers should cite Negusie v. Holder, 129 S. Ct. 1159 (2009). In that case, the Supreme Court suggested that a prison guard, who forced others to stay outside in the hot sun, leading to death, can still be granted asylum.

Mr. Negusie testified that he was forced to carry a gun and to guard a gate to prevent escapes. He had to make sure prisoners stayed outside in the very hot sun. "He saw at least one man die after being in the sun for more than two hours." 129 S. Ct. at 1163.

The IJ, the BIA, and the Fifth Circuit quickly denied asylum to the applicant, ruling that an alien's motivation and intent are irrelevant to the issue of whether he "assisted" in persecution. The Supreme Court reversed, stating that the relevant statute, INA §101(a)(42), was "ambiguous."

The Court stated that the Refugee Act, including §101, was enacted because Congress wanted "to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees…" 129 S. Ct. at 1166 (internal quotations and citations omitted). By remanding the case, the court indicated it had sympathy for the prison guard. The court suggested that the intent of Congress was that adjudicators should be generous to asylum applicants, even they were prison guards who caused deaths.

I believe the Supreme Court would also be generous to repentant former gang members who would make a positive contribution to our country.


The United States already has plenty of violent criminals. We do not need anymore. However, if Mr. Ramos is forced to return to El Salvador, he will be killed, or he will rejoin the gang and kill others. Either way, there will be death.

Mr. Ramos says he is a born-again Christian who does not want to kill. If he stays here, he will build up his community. If he returns, he will make the gang stronger. The gang will kill and maim for years to come. This will cause more people to flee northward.

Are not our asylum laws broad enough so that a truly repentant person may "breathe free" here in America?

Some on-line AOBTC lesson plans:

"One-Year Filing Deadline," dated March 23, 2009, 32 pages, is available at:

"Female Asylum Applicants and Gender-Related Claims" is a 41-page lesson plan dated March 12, 2009. It is available at

A 54-page Lesson Plan entitled "Guidelines for Children's Asylum Claims," published on March 21, 2009, is available at:

"Asylum Eligibility Part III: Nexus and the Five Protected Characteristics" dated March 12, 2009, 82-pages long, may be available from the author if you ask nicely.

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 and has secured asylum or withholding for people from 30 countries.

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

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