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  • Article: Asylum Granted To Man In El Salvador Due To His “Anti-Gang” Political Opinion By David L. Cleveland

    Asylum Granted To Man In El Salvador Due To His "Anti-Gang" Political Opinion

    by


    “Social activism” against gangs is the expression of a political opinion, ruled a Boston MA Immigration Judge.

    IJ Leonard I. Shapiro granted asylum to an activist from El Salvador, in an 11-page decision dated September 9, 2015. A redacted version is available at Louise Trauma Center: www.louisetrauma.weebly.com, on the “Gang-Based Asylum” page.

    Facts

    Respondent was active in the FMLN, “a leftist political party.” Opinion at 3. He campaigned against the ARENA party, whose policies respondent believed “were exacerbating the gang problem in El Salvador.” Id. at 5. He founded a community organization, ADESCO, to fight against some policies of the ARENA party. He was active in his church.

    Respondent organized a campaign to make reports to the police whenever gang members entered his community. He spearheaded a new security plan, to hire private guards. He “became widely acknowledged to be the leader of anti-gang efforts within his community.” Id. at 5.

    The Immigration Judge quoted with approval from a study in 2005, which concluded that gangs in El Salvador have developed “ambitious political and economic agendas.” Id. at 5, note 1, [emphasis added], citing Max G. Manwaring, Street Gangs: the New Urban Insurgency

    [available at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=597]

    “The gangs exercise their own justice, demanding certain behavior from all,

    particularly those residing in the areas in which they operate and those who affect their political and economic interests. Those who openly oppose the gangs and their tactics are targeted for violent retribution.”

    Id. at 5, note 1 [emphasis added].

    In September 2009, gang members told Respondent “that if he didn’t stop organizing

    against them he would have to ‘watch out.’” Id. at 5. A gang member told Respondent’s wife they would kill Respondent.

    Respondent fled his country, and came to the United States. At the time of his hearing, he presented evidence from his church and the FMLN that that gangs were still looking for him.

    “Membership in an organization that has a political purpose or outlook may demonstrate political opinion even if the organization is not a political party.” Id. at 7.

    “Persecution of persons who assert [the right to be free from abuse] is persecution on account of political opinion. The same general principles apply to a persecutory agent who is a non-state actor.” Id. at 7, [quoting from Deborah Anker, Law of Asylum in the United States (West, 2013) at §5:17]

    Respondent believes that gang activities are “politically destructive” to his country, “and that the policies of the ARENA party exacerbated the gang problem” there. Id. at 8.

    Respondent “actively supported the FMLN, which he believed was committed to fighting against the gangs and the underlying economic conditions fomenting the empowerment of the gangs.” Id. at 8.

    A persecutor may have more than one “central reason”

    Persecutors may have differing motives. The asylum applicant must show a nexus to a protected ground, “even though the protected ground is not the sole or primary reason.” Id. at 9.

    The protected ground “cannot be incidental, tangential, or superficial.” Id. at 9

    The Board ruled in Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 213 (BIA 2007), that the protected ground could not be “subordinate” to another reason for the harm. But, on appeal, the Third Circuit disagreed, noting “Congress rejected the notion that a mixed-motive analysis should depend on a hierarchy of motivations in which one is dominant and the rest are subordinate. Ndashimiye v. Attorney General of U.S. 557 F.3d 124, 129 (3d Cir. 2009).” Id. at 10.

    The “plain language” of the statute “indicates that a persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is irrelevant.” Id. at 10, quoting from Ndashimiye, 557 F.3d at 129.

    The Respondent was threatened for two reasons: 1] he refused to pay extortion money; and 2] “he was openly active in speaking out and organizing against [the gangs].” Id. at 10. His expression of his “anti-gang opinions” was at least one central reason” why the gangs targeted him. Id. at 10.

    Comments of the author

    1. The Board’s decision in Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 212 (BIA 2007), outlines the legislative history of the REAL ID Act. “Congress did not require that the protected ground be the central reason….” [Emphasis in original]. Rather, the version originally introduced in the House of Representatives provided that the applicant had to show one of the grounds was “a central reason.” Id. at 213 [Emphasis in original]. During conference on the bill, this language was modified to become “at least one central reason.” Id. at 213.

    The Board continued its assessment of the intent of Congress: “Incidental” is defined as “of a minor, casual, or subordinate nature,” therefore, “where a protected ground is only subordinate to another (nonprotected) reason for the persecution, an applicant is ineligible for asylum.” Id. at 213 [Emphasis added].

    The Third Circuit affirmed the denial of asylum to Mr. J-B-N-, in Ndashimiye v. Attorney General of U.S. 557 F.3d 124 (3d Cir. 2009). However, the Third Circuit reversed the ruling of the Board in one respect: The Board ruled that would be no asylum, if the protected ground was “subordinate” to another ground; the Third Circuit ruled that even if the protected ground were subordinate, the applicant could still get asylum.

    The “plain language” of the statute “indicates that a persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is irrelevant.” 557 F.3d at 129. In other words, a central reason need not be a “dominant” motivation. Id.

    2. The Immigration Judge identified two motives of the gang: it wanted money and it was

    annoyed by the anti-gang political opinion of respondent. However, the Judge did not make a finding that one motive was more important than the other; nor did he assign any percentages to the two motives. Rather, he found that both motives were “central” and that neither was “incidental, tangential, or superficial.”

    How does the Judge know that? What if the “wanting money” motive was 80% of the

    reason, and “annoyance at political opinion” was 20% of the reason? Is a 20% reason still a “central” reason?

    3. Most courts deny relief to victims who claim the gang was motivated by their political opinion. Mere “opposition to crime, without more, is not a political opinion.” Giraldo-Pabon v. Lynch, 2016 WL 6135 245, *3 (1st Cir. 2016). 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])

    In Salazar-Ortega v. Lynch, 2016 WL 3644 649 (8th Cir. 2016), the Immigration Judge found that the bad guys attacked respondent “for the simple reason that they wanted money.” Id. at *2. The BIA found the evidence was “insufficient to establish that the two men had any motive beyond criminal extortion for money.” [Emphasis added] Id. at *3. The Eighth Circuit agreed. Id. at *3.

    4. Is the gang a “government”? A “government” often collects taxes, and provides

    services, such as offering police protection and construction of roads and schools. If a gang collects “money-taxes-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.

    5. 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.

    6.Is a gang a “rebel army?” Some gangs have more members and more weapons

    than the local police. Some gangs attack police. Thus, it can be argued that gangs are like rebel armies. Rebels have political agendas.

    7. Gangs have “political” agendas, say many commentators. See Max G.

    Manwaring, Street Gangs: the New Urban Insurgency [available at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=597 [last accessed on November 3, 2016] See also Michael Lohmuller, Assessing El Salvador’s Gangs in a Post-Truce Context, [available at http://www.insightcrime.org/news-analysis/assessing-el-salvador-gangs-in-a-post-truce-context] [last accessed on November 3, 2016]

    At least one author claims that gangs in Mexico have “political” motives, and want to “capture” the Mexican state. See Kenneth Watkin, Fighting at the Legal Boundaries, Oxford University Press, 2016, at page 178. See also Gagne, David. "El Salvador Gangs Outline Political Motives of Violence." InSight Crime. March 2, 2015. Accessed November 3, 2016. http://www.insightcrime.org/news-briefs/el-salvador-gangs-outline-political-motives-violence.

    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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