This information aims to provide practitioners with an overview of the evolution of gang-related asylum claims and specific information on the standards that apply under international law. Although gang violence is a feature of everyday life in some parts of the world, the adjudication of claims of gang-based persecution has been limited mainly to Canada, Mexico and the United States and these cases have been brought primarily by young people from Central America. For example, in the United States asylum requests from those fleeing gang-related violence in Mexico reached a record 5,551 in 2010. On the other hand, only 165 were granted meaning that for an individual fleeing gang-related violence, finding protection under the 1951 Refugee Convention is still very difficult. Given the inconsistency in treatment of gang-related violence claims the UNHCR issued a Guidance Note in March 2010 on Refugee Claims Relating to Victims of Organized Gangs. The Guidance Note addresses whether victims of criminal gangs or activities associated with those groups may be considered in need of international protection under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and, if so, under what circumstances. The Guidance Note offers the most comprehensive analysis of international legal protection for gang-related asylum claims. It includes a detailed overview of the definition of what constitutes a “gang,” typology of victims of organized gangs and a legal analysis.
Not wishing to duplicate this note, this summary will concentrate on analyzing the principles of law established in domestic courts, focusing mainly on the United States where the greatest number of cases have been tried. I will include other countries as relevant and summarize the state of the law for the three forms of protection available for those fleeing gang-related violence: Asylum, withholding of deportation and the Convention Against Torture (“CAT”). This summary will also point out areas where the UNHCR Guidance Note has come out in support of a different interpretation of the protection obligated under the 1951 Refugee Convention for those fleeing gang-related violence than that currently in practice at the domestic level.
What is a “gang”? Although there is no universally recognized definition of a “gang” under international law, in its Guidance Note the UNHCR stipulates a “gang” refers to:
- Relatively durable, predominantly street-based groups of young people for whom crime and violence is integral to the group’s identity.
- Organized criminal groups of individuals for whom involvement in crime is for personal gain and their primary “occupation”
- Vigilante type groups involved in criminal activities.
Background of gang-related violence claims
Historically, the claim to asylum based on gang-related violence was directly related to the inadmissibility and deportability of aliens who commit gang crimes. Following the end of the civil wars in Central America and the signing of peace accords in El Salvador in 1992 and Guatemala in 1996, the United States began a policy of deporting gang members, raised in the United States, to Central America and Mexico where gangs were rare creating was have come to be known as transnational youth gangs. As one of the poorest nations in the region, Honduran youth violence has always been among the highest in Central America with gangs such as MS-13 and Mara 18 the most deeply entrenched. In response to deportation orders, in the early 2000, lawyers began to argue that Salvadoran youth faced persecution as perceived or actual gang members.
The increasing number of immigrant gang youth deportations to Central America led to the emergence of what has come to be known as “transnational youth gangs”. Central American governments responded to increasing gang violence with the introduction of El Plan Mano Dura (tough, or firm, hand) policies, a “zero tolerance” approach, based on the policing model of the United States but which had become militarized in the local context of countries such as El Salvador. Mano Dura allowed for known and suspected gang members to be routinely rounded up by police and held without trial. Many suspected gang members were arrested on the grounds of ‘illicit association,’ because they did not possess identity papers or merely for had identifying tattoos. In addition, under Mano Dura, extrajudicial killings of known and suspected gang members increased with police and military involvement.
These policies were and are particularly harmful to children. In addition to rounding up children, sometimes as young as 12 or 13 years of age, without proof of their gang association and denying them fundamental due process guarantees including the right to a fair trial, some facilities detained children with adults, leading to rape and sexual abuse (Boulton 2011:26).
Until 2009, American courts rejected asylum claims based on gang violence on the grounds that the state were trying to crack down on gang violence. They routinely held that, even though the claimant was credible, the violence was a “personal problem” rather than “police neglect” or something the government was “unable or unwilling” to control.
Most claims were connected to Central America, but there are also claims arising from gangs in Albania, Jamaica, ‘skinhead’ (far-right) gangs in Eastern Europe and the Russian Federation (Boulton 2011:4).
Grounds for Asylum
This pattern of violence in which youth who had been deported from western states were seeking reentry or resisting deportation after having been either involved in youth gangs in El Salvador, Honduras or Guatemala or targeted by them for resisting membership has led to the recognition of a new type of victim of persecution that falls into four categories:
- Resistance to gang activity
- Former or current gang members
- Female victims and critics of State’s anti-gang policies and activities
- Family members
Those fleeing gang-related violence must prove a “well-founded fear” or persecution on the basis of political opinion, race, religion, nationality or a member of a particular social group. In gang-related asylum claims it has not been difficult for claimants to show a, “well-founded fear,” but showing 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 is more difficult.
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. Asylum has 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 neighborhoods.
In most gang-related claims, the persecution involves non-state actors. 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 he/she cannot relocate because the gang has nation-wide reach and organization. This has been easier to document in Central American gang cases since the countries are small as compared to Russia or the 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 in 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: 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 his safety because of his “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, an illegal use of violence will follow as “persecution” for that imputed or manifest political opinion.
Religion: A claim based on religion would be one where the applicant’s religious beliefs are incompatible with gang life style. The applicant might have refused to join a gang because of his/her religious belief of conscience or was targeted after a religious conversion when trying to exit the gang. The UNHCR Guidance Note cites cases from the U.S., Canada and New Zealand that have offered guidance in cases of this kind (para. 32).
Particular Social Group: Most of the gang-related asylum cases are made under the ground of “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. 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). According to the 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. However, US courts have not accepted this position and requires both a finding of an “immutable or fundamental characteristic” and “social visibility.”
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, color, 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). The most relevant in gang related cases is a shared past experience. In the United States, the Board of Immigration Appeals (“BIA”) has accepted an alien’s status as former member of a national police, a soldier or a government informant as 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”.
Youth Gang Recruits
Cases collected of unpublished opinions from pro bono attorney’s 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.” On 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 to 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 as lacking “social visibility”. In two related US decisions Matter of S-E-G and Matter of E-A-G it was held that basing a particular social group on “youths perceived to be affiliated with gangs,” is “inconsistent with the principles underlying the bars to asylum…based on criminal behavior”.
Women who fear rape, human trafficking or violence due to familial affiliation
Claims such as “young women who will not voluntary enter the sex trade,” “young women without male protection” or “victims of the sex trade,” often fail because it was held there was only a general fear of crime and not persecution “on account of” membership in the social group and singled out independently of the harm suffered (Lister 2008: 832).
On the other hand, there is an unpublished opinion of a case brought by a pro bono attorney on file with the author of this summary that was successful in which the attorney argued that the particular social group was “young women who refuse to be the victims of violent sexual predation of gang members.” The immigration judge held that there was persecution “on account of” a woman’s refusal to be a victim of sexual violent predation where there was documentation that the applicant made formal complaints but no action was taken demonstrating that gang members operate with virtual impunity.
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).
It may be helpful to have an expert opinion from a psychologist of 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.
Family Members: 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).
Inclusion of Former Gang Members Excludable under Article 1F(b)
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 is of a particularly violent nature, with the result that voluntary membership thereof may also raise a presumption of individual responsibility, the burder 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) His/her mental state and
(3) Possible grounds for rejecting individual responsibility