Three El Salvadoran teenage siblings fled their country in 2004 after members of a violent youth gang known as MS-13 beat the two younger brothers and threatened to kill them if they did not join the gang.
Now living in the St. Paul area, the youths have tried to get asylum. So far, they have lost at each step of the way. Now their case is heading to the 8th Circuit Court of Appeals. It’s one of the first cases in a new effort by the Immigrant Law Center of Minnesota (ILCM) to step up appeals and set friendlier precedents for immigrants and those seeking asylum.
The Appeals Court ruling on the Salvadoran youth will affect many other asylum seekers, said attorney Ben Casper, who heads the new Appellate Litigation Project for ILCM. During the last decade, increasing numbers of asylum claims have come from Central American youth who have refused gang recruitment. There are hundreds if not thousands of similar cases, he said.
The United States toughened its immigration laws in 1996, increasing deportations, Casper said. Undocumented youth, notably youth involved in Los Angeles-area gangs, got sent to their home countries—and their home countries couldn’t handle them. Gangs exploded in Central America. They are international and extremely violent, he said.
U.S. immigration officials do not appear to dispute that the three Salvadorans face danger if they return home. The Board of Immigration Appeals (BIA) decision summarizes the facts. It says that the MS-13 gang stole money from the brothers, beat them and threatened to rape their sister. Armed gang members issued death threats if the brothers did not join, saying “their bodies might end up in a dumpster.” A few months prior to fleeing El Salvador, the siblings learned that “the MS-13 shot and killed a young boy in the neighborhood after he refused to join.”
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.
The ILCM is pushing to get the youths asylum based on their belonging to a “particular social group”—the group of youths who fear reprisals for refusing gang membership. “For decades, the cutting edge of asylum law has tended to focus on who can you fit into that ‘particular social group’ category,” Casper said.
So far, an immigration judge and the 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.
Casper said the BIA has extended social group protection to women who oppose female genital mutilation and to homosexuals from Cuba, neither of which is socially visible. The “social visibility” requirement is inconsistent with past decisions, he said. “Youth who reject gang membership also clearly have a shared past experience based on their associational choices,” he wrote.
The ILCM will represent the siblings before the 8th Circuit with pro bono co-counsel from Washington D.C. Court of Appeals cases are more costly and complex, but, “if you are not litigating in the 8th Circuit, you’re not in the game,” Casper said.
Here’s why. The initial review of immigration and asylum cases happens at administrative hearings in the Department of Justice, not the courts. An immigration judge, who is part of the Department of Justice, hears the case and the first appeal goes to the BIA, which also is part of the Department of Justice.
While the BIA issued a written opinion on the case involving the three Salvadorans, written opinions are the exception, not the rule. Under the Bush administration, the government shrank the BIA’s size, said John Keller, ILCM’s Executive Director and Supervising Attorney. The BIA increasingly issues decisions agreeing with the immigration judge, without issuing any further written opinion.
That trend gave rise to ILCM’s Appellate Litigation Project. To clarify the legal reasons for denying appeals, clients and their attorneys have to go to the Court of Appeals. And appeals are up. The 8th Circuit Court of Appeals (which includes Minnesota) heard 15 immigration cases in 2000. The number increased to 90 by 2004, according to ILCM data.
Pursuing cases at the Appeals Court level is one way to get a big impact by establishing broader precedents, Keller said. The project got start-up money from the National Immigrant Justice Center and will leverage pro bono attorney help.
“Unfortunately, the U.S. Court of Appeals for the 8th Circuit has been widely noted as one of the least receptive courts when it comes to the claims of immigrants,” the ILCM said in a written statement. The new litigation project, “will seek to enhance the quality of representation available to individual immigrants before the court, with the long-term goal of wining more positive decisions and building more favorable law for our entire immigrant community.”
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.