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  • Article: Asylum Granted To Woman In El Salvador Who Cooperated With Police And Who Was Viewed As "Property" By A Gang By David L. Cleveland

    Asylum Granted To Woman In El Salvador Who Cooperated With Police And Who Was Viewed As "Property" By A Gang

    by


    Cooperating with authorities can be the expression of a political opinion, and women viewed as property, because they earlier had suffered crime, can be a cognizable particular social group, ruled a Baltimore, Maryland Immigration Judge.

    IJ Phillip T. Williams granted asylum to a 34-year-old woman, in a 19-page decision dated May 2, 2011. A redacted version is available at Louise Trauma Center: www.louisetrauma.weebly.com, on the “Domestic Violence” page.

    Facts

    Respondent witnessed members of the M-18 gang murder two young men. Police talked to her, in public, at the scene, one hour afterwards. Sometime later, 4 members of M-18 raped her. The next day, the rapists told her that she was “their woman.” Opinion at 5. She did not report any of this to the police.

    She moved 35 miles away, but the four rapists found her, pushed her into a taxi, and told the driver that she was “the ***** who had pointed the finger” at them with the police about the murder of the two young men. Id. at 7.Then they raped her. She did not report this to the police either, “because she had seen other cases in which people had gone to the police and had then been killed.” Id. at 6.

    She moved again, but two months later, the rapists grabbed her, and said she was “their woman” and “their property” and raped her again. Id. at 6. During the rape, one man told her “that what was happening was normal because she belonged to them.” Id. at 6.

    She became pregnant; she and the four rapists believed that one of the rapists was the father. She had a baby girl. The rapists said they wanted to carry the baby. Respondent resisted; the rapists laughed and said “they had rights over her daughter.” Id. at 7.

    Then, the rapists demanded “rent” of $200 per month, which was her monthly salary. So, she fled her country and came to the United States. Upon arrival, she told the Border Patrol she came to the United States to work, and that she was not afraid to return to her country. She filed for asylum, stating therein that she had been raped twice, but not thrice. Four years after the last rape, the rapists went to her father’s workplace and asked where she was.

    She has had many nightmares here in the United States. She is unable to leave the house alone, because she fears she will see men with tattoos.

    A Licensed Clinical Social Worker [LCSW] testified that Respondent had PTSD. Common among persons with PTSD is “persistent avoidance of stimuli associated with the trauma, and [inability] to recall very important parts of the trauma.” Id. at 10.

    The LCSW also testified that she believed Respondent was telling the truth. Id. at 11.

    Dr. Thomas J. Boerman testified that El Salvador is a “male-dominated society where women, particularly those in lower socioeconomic classes, are perceived as property.” Id. at 12. He stated that women who have offended gangs “are often then murdered and dismembered, their body parts left around the community.” Id. at 12.

    Dr. Boerman believed that Respondent was originally targeted for participating in police investigations, but then she was targeted because she was the “property” of the gangs.

    PTSD excuses inconsistencies of Respondent

    The IJ found Respondent to be credible, despite her failing to mention all three rapes in her asylum application, because “her therapist explained that the Respondent’s PTSD has caused her to suppress certain memories and that she has only recalled details gradually…” Id. at 13-14.

    “Similarly, Respondent’s difficulty recalling the exact dates of certain events does not destroy her credibility in light of the trauma she has suffered. See Matter of B-, 21 I&N Dec. 66, 70 (BIA 1995)(finding that an alien who has fled persecution may have trouble remembering exact dates when testifying, and such failure to provide precise dates may not be an indication of deception).”

    Id. at 14.

    The gang has imputed an anti-gang political opinion to her

    Respondent has not expressed an actual political opinion in opposition to gangs, but “this

    is not required because she has demonstrated that the gang members imputed an anti-gang political opinion to her.” Id. at 14. See Singh v. Gonzales, 406 F.3d 191, 196-97 (3d Cir. 2005).

    Dr. Boerman opined that gangs in El Salvador “seek to establish a climate favorable to their criminal enterprises by influencing the political process,” and, their goal is “to impose their power and undermine the operational capacity and authority of legitimate state actors.” Id. at 14. Therefore, the gangs target any individual who is perceived to “challenge their political control by reporting to the police, participating in prosecutions, or engaging in other anti-gang activities.” Id. at 14.

    Respondent was at the scene of a gang murder and talked to the police. “Because the gang members perceive all cooperation with the authorities in response to gang activity as an expression of political opposition to the gang’s control, they interpreted the Respondent’s presence at the scene as such and imputed an anti-gang political opinion to her.” Id. at 15. [emphasis in original].

    Salvadoran women who are viewed as gang ‘property’ by virtue of the fact that they were successfully victimized by gang members once before is a cognizable particular social group

    Respondent was persecuted on account of her membership in this particular social group:

    “Salvadoran women who are viewed as gang ‘property’ by virtue of the fact that [they were] successfully victimized by gang members once before.” Id. at 15.

    After the first rape, the gang members’ motive for targeting her “shifted:” their new motive was “because they now viewed her as their property and as someone available to them for further victimization.” Id. at 15. Dr. Boerman opined that after the first rape, their motive “evolved;” the assailants “took ownership of the Respondent” and considered her to be their “property.” Id. at 15.

    All women in El Salvador are subject to violence at the hands of men, but women who have been victimized by gang members are “recognized as…particularly vulnerable” and “are at exponentially higher risk [of] physical harm or death.” Id. at 16. [emphasis in original]. Violence against women by gang members “appears to be much more severe” than against other groups. Women “who have informal relationships with the gang structure…are an “extremely vulnerable group;” they are a “particularly vulnerable segment of the population.” Id. at 16.

    The first rape of Respondent was “for political reasons.” Id. at 17. The second and third rapes were because Respondent was viewed as “property.” Id. at 17.

    “Just as women who have been the victim of human trafficking can constitute a particular social group where they are later persecuted due to the fact that they share ‘the unchangeable, common and historic characteristic of having been trafficked,’ Salvadoran women who have been the victims of gang rape and violence constitute a particular social group because they are identifiable as the sexual property of the gangs by virtue of their past experiences. See UNHCR, Guidelines on International Protection: the application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked, paragraph 39…”

    Id. at 17.

    Comments of the author

    1. Most victims of gang violence are denied asylum. Courts explain that gangs are

    indiscriminate in their violence; the gangs just want money; they want to expand their ranks; “their victims come from all segments of society.” Matter of M-E-V-G-, 26 I&N Dec. 227, 249-51 (BIA 2014). An “alien’s fear of criminality is not a basis for asylum.” In re: Ana Cruz-Sanchez, 2016 WL 9466 96 (BIA 2016). Most courts deny relief to victims who claim the gang was motivated by their political opinion. Alvizures-Gomes v. Lynch, 830 F.3d 49, 53 (1st Cir. 2016) (“Gangs may have a nearly infinite variety of reasons for targeting a particular individual, including greed or an aspiration to increase their membership…. Given the wide range of possible motivations, evidence of mere refusal to join a gang, without more, does not compel a conclusion that the alleged persecutor viewed the alien's resistance as an expression of a political opinion.” [citations and quotations omitted])

    However, a factor helping a person win asylum is showing that the person’s group suffers more than other groups. Temu v. Holder, 740 F.3d 887, 893 (4th Cir. 2014)(certain mentally ill persons in Tanzania are “singled out for abuse in hospitals and prisons….”). IJ Williams ruled that women who had already suffered violence are much more at risk for more violence, than other groups.

    2. The Court cited Singh v. Gonzales, 406 F.3d 191 (3d Cir. 2005), which involved a

    Sikh from India. The police beat Singh, in part because they imputed his father’s separatist political opinion to him. ”There is nothing in the case law that suggests that an asylum applicant claiming imputed political opinion is required to have any knowledge about the political belief that is being imputed to him.” Id. at 196-97.

    3. The decision of Judge Williams, dated May 2, 2011, is before Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). In that case, the BIA announced that it would “clarify” the law about particular social groups, by requiring that applicant establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

    Judge Williams used the phrase “socially visible” to describe the group in the case before him. That element has been renamed as “social distinction.” I believe the reasoning of the Immigration Judge is in accord with the teaching of M-E-V-G-.

    4. Judge Williams cited a paragraph from the UNHCR with approval. ¶39 of a

    UNHCR document provides:

    Former victims of trafficking may also be considered as constituting a social group based on the unchangeable, common and historic characteristic of having been trafficked. A society may also, depending on the context, view persons who have been trafficked as a cognizable group within that society. Particular social groups can nevertheless not be defined exclusively by the persecution that members of the group suffer or by a common fear of persecution. It should therefore be noted that it is the past trafficking experience that would constitute one of the elements defining the group in such cases, rather than the future persecution now feared in the form of ostracism, punishment, reprisals or re-trafficking. In such situations, the group would therefore not be defined solely by its fear of future persecution.

    http://www.unhcr.org/en-us/publications/legal/443b626b2/guidelines-international-protection-7-application-article-1a2-1951-convention.html [last accessed on October 18, 2016].

    The BIA declined to follow a different part of the UNHCR Guidelines in Matter of M-E-V-G-, 26 I&N Dec. 227, 248 (BIA 2014)(“We recognize that our interpretation of the ambiguous phrase ‘particular social group’ differs from the approach set forth in the UNHCR's social group guidelines, which sought to reconcile two international interpretations that had developed over the years. UNHCR Guidelines, supra, at 2-3….”).

    5. IJ Williams did not comment upon the fact that Respondent, upon arrival in the

    United States, told the Border Patrol she came to work, and that she was not afraid to return to her country. Respondent was lucky; asylum is often denied due to inconsistencies such as these.

    6. Is the gang a “government”? The IJ did not say so. What “political control” did

    the gang have? What does “political control” mean? The IJ did not elucidate. A “government” often collects taxes, and provides services, such as offering police protection and construction of roads and schools. If a gang collects “rent,” and offers “protection” from other gangs, it is at least somewhat governmental. If there is an area where the “real” government is not doing those things, then it can be argued that the gang is “the” government. Then, opposition to the gang is opposition to the government, which is a political opinion.

    Thomas Boerman published an essay on this subject in 2009, and is available at:

    https://www.ilw.com/articles/2009,1215-boerman.shtm.

    Asylum officers are instructed that expression of a political opinion “may take many forms,” including “Opposition to gangs.” “Opposition to a gang may have a political dimension, but refusal to join the gang is not necessarily politically motivated.” USCIS, Nexus and the Protected Grounds, at 29 (4/30/13), available at www.uscis.gov.

    Reprinted with permission.


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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