Falling through the cracks: Gang victims as casualties in current asylum jurisprudence

Abstract

With the rise of transnational gangs in recent years, gang-based asylum cases have become both common and the cutting-edge of asylum jurisprudence. U.S. law protects persons fleeing serious human rights abuses inflicted on account of five protected grounds: race, religion, nationality, political opinion, and membership in a particular social group. Gangs target and persecute people based on their religion and their family relationships. They also persecute people who refuse to join a gang and refuse to date a gang member, as well as those who leave a gang. Women additionally face sexual harassment and rape. These victims often share similar socioeconomic backgrounds that make them vulnerable to gangs, and consequently, they face many shared dangers: beatings, threats, and, in some cases, even death. Yet, not all victims of gangs qualify for asylum even though they face similar threats of harm and share other socio-economic circumstances that make them vulnerable to gangs. In this article, I set forth five hypothetical cases based on the persecuted groups listed above as a tool to compare and demonstrate the gaps in asylum protection for those who refuse gang recruitment, those who oppose gangs, and, in some cases, former gang members or youth with former gang involvement.

In response to the changing circumstances of refugees, including persecution by gangs, the UNHCR has allowed for flexibility in interpreting the 1967 Refugee Protocol. Although Congress codified provisions of the Refugee Protocol in 1980, the Board of Immigration Appeals (BIA) failed to apply the UNIHCR's flexible approach in interpreting "membership in a particular social group" and "political opinion." Instead of broadly interpreting the term "membership in a particular social group," the BIA narrowed its interpretation by adding the criteria of "particularity" and "social visibility" in cases unrelated to gang persecution. Most U.S. circuit courts have adopted the BIA's narrow interpretation, however, a split between circuits exists.

Humanitarian relief, however, is restricted by the narrow interpretation of asylum criteria. The inflexibility of U.S. asylum law can become more entrenched when circuit courts give Chevron deference to the BIA decisions that narrowly interpret the asylum qualifying provisions,' and because circuit courts are bound by stare decisis to abide by their previous decisions.'' Moreover, these decisions do not provide clear guidance and interpretation of the asylum qualifying provisions.

This article builds on a growing recognition that asylum jurisprudence lacks clarity and deviates from the broad and principled protective ethic embodied by the 1967 Protocol. It also draws on scholarship that provides a rational approach to Chevron deference analysis in the asylum context. The procedures it sets forth for advocates to raise and preserve legal issues enable the BIA and circuit courts to review and reconsider the interpretations of "particular social group" and "political opinion" in asylum law. Thus, the article supports the notion that the protective ethic, which lies at the root of all asylum law, should guide the analysis and interpretation of "particular social group," "political opinion," and the nexus between the persecution and the protected ground in all asylum cases.