More Bad News for Newly Arrived Children


Last week I wrote about a decision by the Board of Immigration Appeals (BIA), the administrative appeals court for immigration cases, that created a legal standard for gang-related asylum cases that would be difficult for many of the newly arrived Central American children to meet. The BIA said that the children must show not just that they would be persecuted by the gangs, but that the gang wanted to harm them because of their race, religion, nationality, political opinion, or social group.

The children in the S-E-G- case said that they were part of a social group of young Salvadorans living in lower income neighborhoods controlled by gangs who had refused to join the gangs. The Board of Immigration Appeals rejected this as a social group.

The Supreme Court has not issued a ruling on a case involving gang membership, but there have been decisions by Federal Circuit Courts of Appeal that are relevant. I want to spend some time looking at what these courts have said about whether persecution for resistance to joining a gang constitutes a basis for granting asylum. Professor Lauris Wren of Hofstra Law School shared some of her thoughts on this with me, and they have been invaluable in helping me analyze the case law.

A number of the cases in the Courts of Appeal deal with children who said that they were politically opposed to joining the gang. In these cases, the children saw the gang as a sort of government in their neighborhood. The gang operated beyond the control of the actual government and often was more active and visible than the legitimate government. The children said that they opposed the gang because it was ruining the area they lived in, because it engaged in behavior contrary to respect for human rights, and because it violated their beliefs.

Several Courts of Appeal have held that a child merely telling a gang that that child does not want to join does not constitute expressing a political opinion for asylum purposes. In the 2008 case of Gomez-Benitez v. Attorney General, the 11th Circuit ruled that refusing to join a gang was not sufficient to serve notice on the gang that the child possessed a political opinion opposed to the gang. The Court implied that the child had to have engaged in anti-gang activities to be eligible for asylum on this ground.

The 11th Circuit also upheld the BIA ruling that the social group that the child alleged that he was a member of, “Honduran schoolboys who refuse to join gangs,” was not a social group that was sufficiently visible to Honduran society. The group was too broad, it said. If accepted by the courts as a social group, it would potentially allow all young Honduran boys an opportunity to obtain asylum.

In Gaitan v. Holder, a 2012 case from the 8th Circuit, the court followed a similar line to that taken by the 11th Circuit. The 8th Circuit ruled that “young males from El Salvador who have been subjected to recruitment by MS-13 and who have rejected or resisted membership in the gang based on personal opposition to the gang” were not a social group for asylum purposes.

There has been some success in cases where the asylum applicant has done something affirmatively to oppose the gangs. For example, in Henriquez-Rivas v. Holder, a case from last year, the 9th Circuit ruled that witnesses who cooperated with the police against a gang may be members of a social group. The same court has ruled that when a family is being targeted by a gang, that family might be a social group.

While a reading of the case law seems to paint a pessimistic picture of the legal future of Long Island’s Central American children, there are important rays of hope which I will address in my next article.