Defending the Voiceless: Asylum for Gang Violence Victims
Special to Brooklyn & Boyle by Alan R. Diamante, Diamante Law Group APLC
From the lyrics of a Rage Against the Machine song, and an unambiguous message to the United States’ government: “You’ll never silence the voice of the voiceless!”
Asylum cases claiming persecution by the gangs or cartels in Central America and Mexico are being filed and won by human rights advocates. This is the case notwithstanding the procedural obstacles created by the Department of Homeland Security (DHS) and the reluctance of immigration courts and asylum officers to grant asylum. On the other hand, many cases are also being lost due to a failure by well-intentioned advocates to gather the necessary facts and to properly structure the legal theory or theories in support of each claim.
Present day gang violence can be partly attributed to the Salvadoran civil war. Monsignor Oscar Romero, Archbishop of San Salvador, denounced moral crimes committed against civilians by the repressive Salvadoran government forces. He was described as “the voice of the voiceless,” but was assassinated by a sniper’s bullet while delivering mass on March 24, 1980. In 2015, Pope Francis named Monsignor Romero a “martyr for the Church,” a step towards sainthood. Monsignor Romero’s death has been described as the beginning of the Salvadoran civil war, which lasted from 1980 to 1992 and took thousands of lives.
A generation later, the ripple effect from the war is a central factor in the increase of gang violence in the Central American region which has been described as one of the primary reasons behind the flood of unaccompanied minors and families seeking asylum in recent years.
Ironically, the migration of Salvadorans from war-torn El Salvador to the United States led to the creation of one of the most dangerous criminal gangs, the Mara Salvatrucha (MS-13) in the 1980s. Many of the Salvadoran youth who were psychologically affected by the exposure of civil war violence, later joined criminal gangs in the United States for protection and a sense of belonging to a new society. The MS-13 originated in Los Angeles in the city’s Pico-Union district. Today it is one of the largest and most feared gangs in Central America, with more than 20,000 members across three countries.
The United States government summarily deported convicted MS-13 members and exported the gang problem to Central America.
Alex Sánchez was one of the children that left volatile El Salvador and later joined MS-13 while living in Pico Union. Like many others, the U.S. government deported him back in the 1990s to El Salvador for a criminal history he had generated before reaching the legal drinking age. In El Salvador, Alex had to choose between a life of violence as a gang member or return to the United States to be with his family. He chose the latter. He also embraced peace, denounced violence, and started a family.
Alex also joined Homies Unidos, a nonprofit organization that served to end violence and empower youth through positive alternatives to gang involvement. Alex worked as an activist in Los Angeles and was an outspoken critic of police misconduct in Pico-Union/Rampart area. As a result, he had been threatened by a member of the Los Angeles Police Department and was ultimately arrested and placed in deportation proceedings.
Alex filed for asylum in immigration court claiming that he feared persecution on many grounds including his former membership in a gang and his activism as a peacemaker. By this time, members of Homies Unidos in El Salvador had already been assassinated by either death squads or gangs.
In 2002, in an unprecedented decision, the immigration court granted Alex political asylum. The judge seemed reluctant to rule on a theory that Alex would be persecuted on account of being a former gang member, a particular social group (PSG). Instead, the court granted the matter on a simpler political opinion relating to Alex’s activism.
More than 50,000 unaccompanied minors from Honduras, El Salvador, and Guatemala have crossed the U.S.-Mexico border from October 2013 through September 2014. Many have fled violence, forced gang recruitment, and extortion.
To win an asylum case in the U.S., a foreign national must prove that he was persecuted or fears future persecution on account of his religious beliefs, nationality, race, membership in a PSG and/or political opinion. Alex and his legal team provided numerous theories in support of his claim, but it took one successful claim to grant him the privilege to stay in the United States.
It was not easy then, and it is still very difficult to win an asylum case today. Many cases are denied by immigration judges in determining whether a PSG even exists or whether there is a connection between the motivation of the persecutor and the PSG. Social group claims require an applicant to establish that the persecutor’s perception is a central reason for the persecution and that it corresponds to a properly formulated group.
The analysis can be very challenging for a seasoned advocate, and nearly impossible for an unrepresented applicant. The Board of Immigration Appeals and the circuit courts have rendered many confusing interpretations of the statutory asylum law. For example, multiple circuits have ruled that former membership in a gang is an immutable characteristic that can be a valid PSG while some courts and DHS reject any PSG claim based on present or past association with a criminal organization.
Most asylum claims today however, are not by former gang members but by people that have resisted the recruitment efforts by gangs. PSG claims have been recognized by the DHS and courts in gender violence cases of married women who are unable to leave their relationship. Similar arguments can be made in cases of gangs that sexually abuse and trap women and children. Given the facts of any particular case, advocates should definitely explore alternative asylum theories, like persecution based on one’s opposition to recruitment due to political or religious beliefs instead of relying on one theory or PSG claim.
Gangs do target church groups and a claim may be made if there is evidence that the gang has an animus against the applicant’s religion and is motivated by it. Persecution on account of political opinion where a persecutor attributes a hostile political opinion by the victim, have also been considered valid bases for asylum. Political opinion encompasses a wide spectrum of views and not only views relating to political parties or process.
Advocates must be creative about the theories that support an asylum claim. It is recommended that advocates make every effort to develop detailed and multiple theories for each case. In some cases, advocates should look to alternative, primary asylum theories to the PSG claim given the challenges for the advocate and adjudicator to construct the analysis given confusing case law. Some judges might just prefer an easier argument that requires simpler reasoning.
Victims traumatized by gang violence also have significant procedural hurdles in addition to the substantive challenges. For example, in 2014, DHS opened “family detention” facilities in Karnes City and Dilley, Texas (far from any urban center). Hearings at these facilities are held by videoconference by judges presiding in courtrooms in other locations. Many human rights organizations and legal groups condemn the denial of access to counsel and the procedural deprivation of due process rights. Great numbers of women and children have been deported to Central America from family detention facilities with little due process. There is a huge demand for advocacy and most attorneys must take these cases pro bono.
Today, Alex Sánchez is the executive director of Homies Unidos. Both he and his asylum advocate, yours truly, take great pride in being a voice for the voiceless. Homies Unidos continues to help at-risk youth and is presently organizing youth conferences with the central purpose of ensuring that the new wave of refugee children are welcomed by a supportive community that can assist with the acculturation process while maintaining cultural pride. In the words of Monsignor Romero, “We plant the seeds that one day will grow. We water seeds already planted, knowing that they hold future promise.”