Almost on a daily basis, new reports are coming out emphasizing the gravity of the humanitarian crisis caused in large part by uncontrolled gang violence in Central America's "Northern Triangle" (Guatemala, Honduras and El Salvador) which is causing thousands of unaccompanied children, many under the age of 12, to flee their homes and seek asylum, not only in the US, but in other Central and Latin American countries as well. My colleague Nolan Rappaport, who is an expert in asylum and refugee law and worked for the Board of Immigration Appeals for many years, has forwarded a report to me from the Center for American Progress dated July 24, 2014 discussing the root causes of the humanitarian crisis at the US border involving these children. See The Surge of Unaccompanied Children from Central America: Root Causes and Policy Solutions

(As a disclaimer on Nolan's behalf, I wish to make clear that his forwarding articles on this or any other subject does not necessarily imply that he endorses or agrees with their content.)

The above report states that because of high rates of homicide and violence in the above countries and lack of economic opportunity the number of children expected to reach the US/Mexican border by the end of the current fiscal year in September, 2014, is as high as 90,000. The report is valuable for its detailed analysis of the reasons for the mass exodus of children from these countries, especially gang violence and the activities of drug cartels. It also makes many recommendations for action by the US and other counties on the international scale to deal with this problem. However, the report also states:

"This brief, however, does not delve into the needed policy changes in the areas of immigration and refugee law."

Nolan is pessimistic about the possibilities for change in internal US policies, especially relating to asylum law, because of political factors. He therefore recommends changing current law in order to deny entry to all children at the Southern border seeking asylum in the US (not only those from Mexico), and to process them through the UN for refugee status outside the US. In his view, at least some of the children would eventually qualify for admission to the US as refugees.

ilw.com is not a political discussion site, but is devoted to immigration law only, so I will not discuss the political factors. I will only discuss one of the most important legal issues which Nolan correctly identifies as a major barrier to asylum claims in the US, including claims based on fear of gang violence. This obstacle to asylum is the definition of a "particular social group" ("PSG").

The definition of a PSG by the Board of Immigration Appeals and the federal courts has a history going back three decades, beginning with the decision in Matter of Acosta, 19 I&N Dec., 211 (BIA, 1985). From the time of that decision up to now, the BIA has (more or less) stuck to a narrow definition of this term which, if applied consistently across the board, could make asylum impossible for almost anyone to obtain.

However, the BIA has been far from consistent in applying its definition and has often contradicted itself, used circular reasoning, and been forced to change its rationales for upholding to its narrow definition of the sbove term. It has also run into some harsh criticism from the federal courts.

In a recent 7th Circuit Court of Appeals decision
, Gatimi v Holder, 578 F. 3rd 611, 616 (2009), Judge Richard Posner, one of the most highly respected judges in America, wrote:

"The only way, in the Board's view, that the Mungiki [a violent Kenyan organization] defectors can qualify as members to a particular social group is by pinning a target to their backs with the legend 'I am a Mungiki defector'".
(Emphasis added.)

A detailed analysis, including withering criticism of the BIA's lack of internal logic or consistency in its application of the PSG standard is contained in the Chicago-based National Immigrant Justice Center's February 2014 study, Particular Social Group Practice Advisory: "Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R-"

In my opinion, no one who has not read and absorbed this study thoroughly can claim to be truly knowledgeable about the current state of asylum law.

However, even Judge Posner, in his above decision stated: "We have no quarrel" with a 9th Circuit case in which young Honduran men who resisted being recruited into into gangs were denied asylum for failing to qualify as member of a PSG. See Ramos-Lopez v Holder, 563 F. 3rd, 855, 869-861 (2009).

Therefore, a more careful look at the above two cases, as well as other related decisions, is in order.

To be continued.