Asylum Research

Gang Based Asylum Court of Appeals Decisions

NEW! Contreras-Martinez v. Holder (4th Cir., 10/13/09, No. 08-2323)

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."

Gomez-Benitez v. Attorney General (11th Cir., 9/22/08, No. 07-13999)

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.

Garcia-Garcia v. Mukasey (5th Cir. 9/10/08, No. 07-60724)

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.”

Santos-Lemus v. Mukasey (9th Cir., 9/8/08, No. 07-70604)

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.”

Valdiviezo-Galdamez v. Attorney Gen. of U.S., 502 F.3d 285, 292 (3d Cir. 2007)

The 3rd Circuit remanded this case to the BIA, finding that a Columbian woman persecuted by the FARC had a well founded fear of future persecution based on her membership in a particular social group of “women who have escaped involuntary servitude after being abducted and confined by the FARC.” The Court further found that this group was immutable and supported by the record.

Menjivar v. Gonzales, 416 F.3d 918, 921 (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.

Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (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, Opening Brief of the Petitioner
Lopez-Soto v. Ashcroft, Petitioner’s Final Reply Brief
Lopez-Soto v. Ashcroft, Petition for Rehearing

(Case vacated, 2005 U.S. App. LEXIS 29560 (4th Cir. July 26, 2005)).

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.