USCRI: U.S. Committee for Refugees and Immigrants

Gang-Related Asylum Resources

Court of Appeals Decisions

1st Cir3rd Cir 4th Cir 5th Cir 6th Cir 7th Cir 8th Cir 9th Cir 10th Cir 11th Cir

1st Circuit Cases

Garcia-Callegas v. Holder, 666 F.3d 828 (1st Cir 2012)

  • Holding that the "Salvadoran citizens who may be perceived as wealthy because of the time they spent in the United States" does not constitute a statutorily protected social group.

Mayorga-Vidal v. Holder, 2012 WL 883193 (1st Cir. 2012)

  • Rejecting the particular social group of “young Salvadoran men who have already resisted gang recruitment and whose parents are unavailable to protect them” for lack of visibility and particularity.

Larios v. Holder, 608 F.3d 105 (1st Cir. 2010)

  • Held the purported social group in Guatemala of youth resistant to gang recruitment was not socially visible and not sufficiently particular to constitute a social group.

Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010)

  • Reaffirming BIA decision that the "group of young women who resisted recruitment by gang members in El Salvador" was not a legally cognizable group.

3rd Circuit Cases

Garcia v. Att'y Gen., 665 F.3d 496 (3rd Cir. 2011), as amended (Jan. 13, 2012)

  • Civilian witnesses who have the “shared past experience” of assisting law enforcement against violent gangs that threaten communities in Guatemala constitute a statutorily protected social group. It is a characteristic that members cannot change because it is based on their past conduct that cannot be undone. To the extent that members of this group can recant their testimony, they “should not be required to” do so.

Valdiviezo-Galdamez v. Attorney Gen. of U.S.

  • DHS Brief on Remand (May 12, 2012)
    DHS clarifies that the Acosta "common, immutable characteristic" standard by means of the "social visibility" and "particularity" elements are best read as a single "social distinction" requirement.
  • Valdiviezo-Galdamez v. Attorney Gen. of U.S., 663 F.3d 582 (3d Cir. 2011)
    The 3rd Circuit remanded to the BIA holding that the BIA’s requirements that a “particular social group” possess the elements of “social visibility” and “particularity” are inconsistent with prior BIA decisions.  Consequently, those requirements are not entitled to Chevron deference.
  • UNHCR Valdiviezo-Galdamez Amicus Brief (April 14, 2009)
    The BIA's "social visibility" and "particularity" requirements are inconsistent with the intent and purpose of the 1951 Convention relating to the Status of Refugees.

  • Valdiviezo-Galdamez v. Attorney Gen. of U.S., 502 F.3d 285 (3d Cir. 2007) 
    The 3rd Circuit remanded this case to the BIA, holding that: 1) in order to establish past persecution in Honduras, alien was not required to prove that the government in Honduras refused to protect him from persecution by gang members; and 2) substantial evidence did not support determination that alien failed to establish that harm he suffered was on account of his membership in group of young Honduran men who had been actively recruited by gangs and had refused to join.

4th Circuit Cases

Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012)

  • Held that young Honduran males who refused to join gangs, had notified the authorities of gang harassment tactics, and had an identifiable tormentor within the gang did not constitute a particular social group.

Lizama v. Holder, 629 F.3d 440, (4th Cir. 2011)

  • Held that the social group of young, Americanized, well-off Salvadoran male deportees with criminal histories who opposed gangs was not narrow or enduring enough to clearly delineate its membership or readily identify its members

Crespin-Valladares, 632 F.3d 117 (4th Cir. 2011) 

  • Holding that El Salvador citizens who actively opposed gangs by agreeing to be prosecutorial witnesses, as well as their family members who suffered persecution on account of their family ties, constituted “particular social group,” for purposes of asylum statute.

Contreras-Martinez v. Holder , 346 F. App'x 956 (4th Cir. 2009)

  • The 4th Circuit denied the petition for review finding that "[h]is proposed social group of adolescents in El Salvador who refuse to join the gangs of that country because of their opposition to the gangs' violent and criminal activities is too broad and ill-defined to qualify as a 'particular social group' within the meaning of the INA."

Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th. Cir. 2004)  

  • In this case, the 4th Circuit denied Guatemalan gang member Lopez-Sotos’s asylum petition. “Petitioner presented evidence that the presence of violent street gangs was a widespread problem in Guatemala, that his older brother was killed because he refused to join the Mara 18 gang, that the petitioner and his cousin fled Guatemala when Mara 18 threatened to kill them if they did not join, and that his cousin was killed by Mara 18 after Mexican authorities deported the cousin to Guatemala.
  • The BIA held that petitioner failed to establish that the harm he feared was on account of a protected ground. Although the court rejected the IJ’s conclusion that “family did not constitute a particular social group under 8 U.S. C. S. 1101 (a) (42) (A), it found that substantial evidence supported the conclusion that petitioner was not persecuted “on account of” his family membership. Instead, the evidence supported the conclusion that petitioner as being recruited and harassed because he was a teenaged male living in Guatemala.
  • The Court also agreed that petitioner failed to establish eligibility for relief under CAT because he did not show that the national or local governments acquiesced in the torturous activities of the gang.”
  • Lopez-Soto v. Ashcroft, Petition for Rehearing (Case vacated, 2005 U.S. App. LEXIS 29560 (4th Cir. July 26, 2005))

5th Circuit Cases

Orellana-Monson v. Holder, (5th Cir., 6/25/2012, No. 11-60147)

  • Respondents were two Salvadoran boys who claimed membership in the social group consisting of Salvadoran males, ages 8 to 15, who have been recruited by Mara-18 but have refused to join due to principled opposition to gangs.  The BIA  held that Salvadoran young adults who were subjected to, and rejected, recruitment efforts of gangs did not possess the social visbility and particularity to constitute "membership in a particular social group."  Respondents appealed that ruling and the 5th Circuit affirmed holding that the particularity and social visibility test established by the BIA is entitled to Chevron deference.

Bermudez-Merino v. Holder, 372 F. App'x 498 (5th Cir. 2010)

  • Declining to recognize the social group of persons who were subject to extortion by gang members, the court found that the petitioner failed to demonstrate that the putative group had the requisite social visibility or immutable traits that made it readily identifiable or distinguishable from the general population.

Garcia-Garcia v. Mukasey, 294 F. App'x 827 (5th Cir. 2008) 

  • The Court denied the petition for review, finding that the “petitioners failed to establish that governmental authorities in Honduras were unwilling or unable to control the activity of the gang members is supported by substantial evidence, this court will not disturb the agency’s findings.”

6th Circuit Cases

Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010)

  • As a former member of a gang in Honduras, the alien was a member of a particular social group, for purposes of eligibility for withholding of removal based on a probability of future persecution on account of membership in a particular social group.  However, substantial evidence supported conclusion of Board of Immigration Appeals (BIA) that alien committed serious nonpolitical crimes in Honduras, so as to be statutorily ineligible for withholding of removal.

Flores v. Mukasey  (6th Cir., 10/15/08, No. 07-3786)

  • The 6th Circuit denied the petition for lack of jurisdiction finding that "because petitioner failed to exhaust his administrative remedies on all issues raised in this
    appeal by not asserting them before the IJ or BIA."
  • The Court noted that even if jurisdiction were proper, relying on decisions from other circuits, the BIA has recently rejected the precise argument raised by petitioner and held that “the
    proposed group, which consists of young Salvadorans who have been subject to recruitment efforts by criminal gangs, but who have refused to join for personal, religious, or moral reasons, fails the
    ‘social visibility’ test and does not qualify as a particular social group.” Matter of S-E-G, 24 I. & N. Dec. 579, 588 (BIA 2008).

Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003)  

  • The 6th Circuit held that persecution of "tattooed youth" did not meet the standard for social group as they did not share a common, immutable characteristic.

7th Circuit Cases

Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009)

  • Alien, a Kenyan, and his wife and daughter petitioned for review of order of BIA denying the husband's application for asylum, and denying the wife and daughter's derivative applications for asylum.  The Court of Appeals held that: 1) BIA's decision that defectors from Mungiki were not a “particular social group” was inconsistent with prior decisions; and 2) one-year deadline for filing a claim for asylum based on persecution of oneself did not preclude derivate claimant from bolstering her claim with evidence that she was faced with a threat of persecution.

Benitez Ramos v. Holder, 589 F.3d 426  (7th Cir. 2009)

  • The Court of Appeals held that alien, who was a former member of a street gang in El Salvador, was a member of a particular social group within the meaning of the statute providing that persecution on the basis of membership in a particular social group was a ground for withholding of removal.

8th Circuit Cases

Gaitan v. Holder, 671 F.3d 678 (8th Cir. 2012)

  • Held “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” is not sufficiently narrowed to cover a discrete class of persons who would be perceived as a group by the rest of society.

Menjivar v. Gonzales,  416 F.3d 918 (8th Cir. 2005)  

  • Respondent claimed she was harassed for refusing to be the girlfriend of gang member. The court upheld the lower court denial of asylum, concluding that Menjivar’s harassment was due to “personal problems” and not her “membership in a protected social group.” 
  • The Court found that the gang member’s actions did not qualify as “persecution” because the El Salvadoran police conducted a thorough investigation of his activities. 

Henriquez-Rivas v. Holder, (9th Cir. 2013)

  • Ninth Circuit overruled Soriano v. Holder, and Velasco–Cervantes v. Holder, holding that witnesses who testify against gang members may constitute a particular social group on an application for asylum despite a lack of social visibility.

Martinez-Seren v. Holder, 394 F. App'x 404 (9th Cir. 2012)

  • Ninth Circuit vacated BIA’s decision and remanded, holding that BIA failed to address the family aspect of [petitioner’s] proposed social group…[which] was particularly relevant in light of record evidence that the gang targeted members of Martinez-Seren’s family in addition to him and his sister.

Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2012), currently on remand

  • Court held that the BIA erred in dismissing alien's appeal solely on the ground that “all women in Guatemala” could not constitute a cognizable social group.
  • The court noted that the Board has never “specifically addressed in a precedential decision whether gender by itself could form the basis of a particular social group” and remanded to the BIA to address, using the proper standard under Ninth Circuit law, inter alia, whether Guatemalan women is a social group.

Hernandez-Rivas v. Holder, (9th Cir., 6/25/2012, No. 09-71571)

  • Original decision held individuals who testified against gang members that shot and killed alien's father did not constitute “particular social group” for purposes of asylum.
  • The 9th Circuit recently reheard en banc the Henriquez-Rivas v. Holder decision.
  • En banc court seemed troubled by the BIA’s unexplained departure from Acosta.

Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir.  2008)

  • The 9th Circuit denied the petition for review upholding the BIA’s finding that Santos-Lemus could not establish a well founded fear based on his membership in his family as a particular social group, as his mother had remained unharmed in El Salvador following his departure. 
  • Additionally, the Court found that the presented social group of “a young man in El Salvador resisting gang violence unstoppable by the police,” did not have sufficient social visibility and particularity. 
  • Additionally the Court struck down the petitioner’s claim that he was targeted based upon his “anti-gang” political opinions, and his request for relief under the Convention Against Torture. 

Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007)

  • The Court denied the petition for review of a Lawful Permanent Resident from El Salvador seeking relief under the Convention Against Torture, due to his membership in a social group of “American Salvadorian U.S. gang members of a Chicano American street gang, and as former members of the same.”

10th Circuit Cases

 Campos-Perez v. Holder, (10th Cir. 2012)

  • The 10th Circuit found that although evidence suggests that MS-13 gang violence exists in El Salvador, the petitioner failed to prove that she would be singled out and persecuted as a result of her uncles' military service and anti-gang activities. 

 Rivera Barrientos v. Holder, 658 F.3d 1222  (10th Cir. 2011)

The Court of Appeals held that:

  • Substantial evidence supported BIA's determination that central reason for gang's attack on alien was her resistance to recruitment and not her political opposition to gang's agenda;
  • El Salvadoran women between ages of 12 and 25 who resisted gang recruitment made up group that could be described with sufficient particularity to meet standard for “particular social group”; but
  • Proposed group did not meet social visibility requirement.

11th Circuit Cases

Gomez-Benitez v. Attorney General, 295 Fed. App'x 324 (11th Cir. 2008)

The 11th Circuit denied Gomez-Benitez’s petition for review making three findings:

  • The Court upheld the finding of the BIA that the social group of “Honduran schoolboys who refuse to join gangs” did not constitute a social group that was sufficiently visible.  The Court further found that the group was too broad and would provide a “catch all” for all persons alleging persecution in Honduras.
  • The Court agreed with the BIA’s determination that the petitioner had not demonstrated that he had been persecuted on his political opinion, as there was not evidence of political activity that would have been known to the gangs or imputed to him by the gang members.
  • The Court also upheld the denial of his request for CAT relief, finding that Honduran officials had taken action to curb gang violence, and therefore no finding of government acquiescence could be made. 
  • Gomez-Benitez v. Attorney General, Brief of the Petitioner
  • Gomez-Benitez v. Attorney General, Government Response
  • Gomez-Benitez v. Attorney General, Petitioner’s Reply Brief
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