Three El Salvadoran youths face imminent deportation from Minnesota in spite of gang-related death threats in their home country. Attorneys for the youth filed an emergency appeal with the U.S. Supreme Court Tuesday to temporarily block deportation and keep them safe while they pursue an asylum appeal.
The 8th Circuit Court of Appeals and U.S. Immigration and Customs Enforcement (ICE) both rejected requests to temporarily block deportation, said Ben Casper, a pro bono attorney working on the asylum case. Attorneys have written appeals to U.S. Attorney General Eric Holder and Department of Homeland Security Janet Napolitano, asking them to intervene directly, in part because the case will set a significant precedent for other asylum cases.
The youth’s recent arrests came as a shock to Casper, as they have been on their own recognizance while their asylum case proceeds. ICE has had the authority to remove them since last summer but did not act. “The kids are within days of being removed to El Salvador, where it is undisputed they are in serious danger,” he said.
“They [ICE officials] waited for a year and did nothing,” Casper said. “We fully expected there would be a hands-off policy on these kids as there had been throughout the appeal. The urgency with which they have arrested these kids doesn’t add up.”
The Twin Cities Daily Planet first reported on this story in February. The story is available here.
A matter of discretion
Casper and ICE spokesman Tim Counts appear to disagree on how much discretion ICE has to temporarily stop a deportation.
Counts was not familiar with the specifics of the case, when interviewed Tuesday. In general, “We are obligated to carry out the judge’s deportation order,” he said. “We don’t have the option of saying, ‘Well, let’s just throw this in a bottom drawer somewhere and forget about it for a while.’”
Casper, who is working through the Immigrant Law Center of Minnesota, said ICE has “broad discretion not to deport people when they don’t think it is appropriate.”
The Daily Planet sent written questions on the case to Counts at ICE. Here is the Q&A exchange.
Q: Why were they picked up now, when the order has been in place for months?
A: ICE does not discuss the details of individual cases. The agency is obligated by law to carry out removal orders issued by federal immigration judges. Both these individuals have outstanding orders of removal.
Q: Does ICE have the discretion to grant the stay, and if so, why was it denied?
A: ICE does not discuss the details of individual cases.
Q: Does ICE dispute the statement that the youth are at risk if they return home?
A: ICE is obligated by law to carry out removal orders issued by federal immigration judges.
Q. When are the youth expected to be deported?
A: For security and privacy reasons, ICE does not discuss the details of any removal.
Appeal in process
The youths are Silvia, age 22, and Pablo and Rene, both 19. (Their last names are withheld at Casper’s request for their safety.) In El Salvador, the boys were recruited by the MS-13 gang and refused to join, on personal, moral and religious grounds. The gang threatened to rape their sister and kill them. They fled El Salvador in 2004.
They have pursed an asylum case, so far unsuccessfully. It now is on appeal to the 8th Circuit Court of Appeals. The appeal is months away from resolution, Casper said. The youths had been in the country for five years, staying with their mother, who has legal status. They have not caused problems. (The teenage boys have one misdemeanor each.)
The youths’ attorneys could continue the asylum appeal even if the youths are deported Casper said the government should allow them to stay until the case is resolved, as they face real danger if returned home and the case would set a significant precedent for many other youth seeking asylum.
Setting a precedent
To get asylum, applicants have to show they either were persecuted in the past or
have a well-founded fear of future persecution based on one of five grounds: religion, race, nationality, political opinion, or—and this one is key—membership in a particular social group.
Casper argues the youths should get asylum based on their belonging to a “particular social group”—the group of youths who fear reprisals for refusing gang membership.
So far, an immigration judge and the Board of Immigration Appeals (BIA) have said such youths are not a social group. The BIA wrote that youth who refused to join gangs are not a particular, well-defined group but a potentially large and diffuse segment of society. Further, they are not socially visible as a group. “The motivation of gang members in recruiting and targeting young males could arise from motivations quite apart from any perception that the males in question were members of a class,” the BIA decision said.
Thomas Albrecht, deputy regional representative of the United Nations High Commissioner for Refugees, wrote Holder March 18 urging Holder’s office to review the case. Albrecht said the BIA had misinterpreted the High Commissioner for Refugees’ guidelines regarding “social groups”, and the BIA’s reasoning was “inconsistent with the object and purpose of the 1951 Convention relating to the Status of Refugees.”
Scott Russell is a journalist. He wrote for the Southwest Journal and Skyway News (now the Downtown Journal) in Minneapolis from 1999-2005. He also wrote for The Capital Times, a Madison Wisconsin daily, from 1993-1999. Email: firstname.lastname@example.org
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