The Matter of S-E-G- and Child Refugees, Part II: The Ruling

Despite being clearly targeted by the gangs, the BIA ruled that the children were not part of a social group.
Despite being clearly targeted by the gangs, the BIA ruled that the children were not part of a social group.

Last week I wrote about a leading case decided by the top immigration court, the Board of Immigration Appeals (BIA), on the issue of children fleeing gang violence in Central America. In that case, the gang Mara Salvatrucha (MS-13) tried to recruit two brothers. The gang robbed and beat the brothers and threated to kill them and rape their older sister. Shortly before the three siblings fled El Salvador, a neighborhood boy was murdered by the same gang.

Their asylum applications were denied by the immigration judge and the decision was appealed to the BIA. Now, many readers rightly understand that the three teens were viciously persecuted by MS-13. However, the BIA has said that fear of violence is not enough to qualify for asylum. The applicants in this case had to show that the violence against them was because of their political opinion or their membership in a “social group.”

The three asylum applicants said that they were being persecuted because of their political opinion, which was their opposition to the gang’s criminal activities. They also said that they were members of a “social group” of “Salvadoran youth who have been subjected to recruitment efforts by MS-13 and who have rejected” the gang.

The immigration judge in the case had said that being a “youth” is not an immutable social characteristic because the three targets of MS-13 would someday grow older, if they lived. The BIA said that “we agree” with the judge on this issue. The BIA also said that the “social group” proposed by the teenagers failed because it was based on a shared experience of violence among certain Salvadoran youths. In other words, the teens defined their “social group” based on the threats of persecution. The BIA has repeatedly rejected claims that “social groups” can consist of people whose characteristics include having been persecuted in the past.

The BIA also said that since MS-13 engaged in violence against many Salvadorans who were not young people, that the entire Salvadoran population is at risk of attack, not just youths. Since the entire population of a country cannot be a “social group,” the BIA ruled that the teens had not demonstrated that youths were part of a social group that the gang wanted to target.

The BIA also rejected the claim that MS-13 was trying to kill them because of their political opinion of opposition to the gang. The BIA said that the gang was threatening to kill them to increase “the size and influence of the gang.” The appeal was dismissed.

While all of the experts agree that young Salvadoran men from low-income neighborhoods are the primary targets of Mara Salvatrucha, the BIA refused to see what was right in front of their eyes.

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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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