9703095By Paul Sloderbeck, Immigration Attorney
November 11, 2014

Mexican authorities may have recently captured and charged the drug lord Hector Beltran Leyva, but the drug war continues to affect much of the country. The Zetas and the Sinaloa cartel have made inroads into Guatemala, and alongside the Mara Salvatrucha they threaten the way of life of many across Central America.

What chance do young men with few options have when faced with pressure to join these gangs? They may encounter intense threats and isolation, which spurs their decision to flee to the United States. Once in the United States, one possible form of immigration relief may be asylum, but it is a long and difficult road to get approval.

Typically, asylum applicants must apply within a year of arrival in the United States. This is a very important deadline. They must show they are fleeing persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a “particular social group.” That last category is the one that youth fleeing pressure to join a drug gang may try to qualify under.

The Board of Immigration Appeals (BIA) provided guidance on the definition of “particular social group” in the landmark 1985 case of Matter of Acosta. This decision added the requirement of immutability to the definition.

The membership in the social group should be something that is beyond a person’s power to change and fundamental to individual identity or conscience. It might also be a shared past experience like former military leadership or land ownership. Something like an occupation, on the other hand, may be more easily changed, and may not qualify as a particular social group for purposes of asylum.

In 2008 the BIA issued two opinions, Matter of S-E-G- and Matter of E-A-G-, that added other requirements. (These initials stand for individual names who were protected from the public because of the sensitivity of their claims).

These decisions emphasized that the group must have social visibility and particularity. In other words, it must be a group that other members of society recognize. Would other Guatemalans recognize young men who are being pressured to join the Mara Salvatrucha as a social group? The Board seemed to think no, and said that this group lacked a clear boundary, denying the asylum claim.

In spite of criticism from Federal Appeals Courts of these decisions, the Board reaffirmed these requirements in two 2014 decisions, Matter of M-E-V-G and Matter of W-G-R. A social group must have “social distinction” in order to qualify.

The problem with drawing lines for the group is the biggest hurdle an asylum applicant may face. What makes his group distinct? Is it his age? Is it his background that makes him more heavily targeted? Each case may be unique, and these young men or women likely should consult an attorney to help sort out their situation, and present the strongest case possible for a claim of asylum.

There are other options available. Often these youth come alone to the United States. If they are unmarried, under the age of 18, and can show that they cannot or should not reunite with their parents due to abuse, neglect or abandonment, they may be eligible for Special Immigrant Juvenile Status.

These young people should consult with an attorney to see if they qualify. A potential asylum applicant may also qualify for withholding of removal if he or she can show that persecution is more likely than not upon return to his home country. This option has fewer benefits than asylum.

There is also relief for those who can show they will be tortured in their home country, but this must be done by a governmental actor.

Ultimately, many lawyers have been critical of the approach the Board of Immigration Appeals has taken to these youth fleeing gang pressure in making asylum decisions. There is hope that the interpretation of the law could change and allow these young men and women who truly face a perilous situation back home to gain protection here in the United States as refugees.