Look down, not away

Immigration law is controversial, complicated and contested. Situated at the intersection of domestic concerns and international obligations, asylum law is infused with 10 times as much controversy, complication and contestation as many other parts of immigration law.

This is particularly true for asylum seekers from Mexico and Central and South America. Often classified as “illegals” crossing the Rio Grande to exploit resources supported by American taxpayers and steal American jobs, asylum seekers get caught in the whirlwind of an immigration system that is stretched to the breaking point in a country where some citizens fear an invasion of the “illegals.”

But there are many asylum seekers who have credible claims of past persecution or a well-founded fear of future persecution on account of their race, religion, political opinion, nationality or membership in a particular social group. These people are therefore eligible to apply for asylum under the Immigration and Nationality Act and international law. And the United States cannot simply build a heavily armed wall along the border with Mexico to exclude asylum seekers. Instead, the United States has an obligation under federal and international law to provide these individuals with the opportunity to apply for asylum if they have expressed a well-founded fear of returning to their home country.

In the interest of allaying some xenophobic fears, it is important to note that poverty alone is not sufficient for a claim of asylum. Although economic coercion can qualify as persecution when it is particularly extreme, country-wide conditions of poverty simply do not entitle an immigrant to the opportunity to apply for asylum. An applicant must show not only that he or she has suffered persecution or has a well-founded fear of future persecution, but that such persecution was or may be suffered in the future on account of one of the five enumerated grounds: race, religion, nationality, political opinion or membership in a particular social group.

Many of the 57,624 immigrants who crossed the South Texas border from Mexico last year, and many of the 96,829 immigrants from other countries who did the same, claim asylum based on the fear of persecution by gangs in their home countries. This presents a particularly complicated legal problem for immigration attorneys because of the need to base asylum claims on one of the five enumerated grounds. Those who fear being persecuted by gangs usually do not express any distinct political opinion, other than an opposition to being members of the gang. As a result, attorneys must find a way to frame the persecution as being on account of membership in a particular social group.

The Board of Immigration Appeals has developed standards for what constitutes such membership in a particular social group. First, the members of the group must share an immutable characteristic, something they either cannot change or should not be required to change, such as their gender or sexual orientation. Second, the group must be particular and socially distinct. That is, the relevant community must consider the group distinct, even if its members are not readily identifiable. For example, the BIA has found that female members of a Somali tribe who are opposed to female circumcision and have not undergone the procedure constitute a particular social group, even though the characteristic of not having undergone female circumcision is not necessarily a readily identifiable one, barring an invasive physical exam.

With these constraints in mind, immigration attorneys have attempted to construct a particular social group that would satisfy these requirements. However, the BIA has generally been reluctant to grant such gang-based asylum claims. For example, in Matter of S-E-G, the Board held that youth from El Salvador who had been recruited by MS-13 and had rejected or resisted such recruitment based on their personal, moral and religious opposition to the gang did not qualify as a particular social group because the group was not sufficiently particular or socially distinct. As a result of such a strict standard for a particular social group, the United States returns applicants to their home countries, where they will likely be subject to persecution by the gangs once again.

A skeptic might ask why the United States must be the one to take in these asylum seekers and recognize their persecution. The answer is fairly simple. If we are serious about enforcing human rights and protecting every individual’s right to be free from persecution, then it does not matter why these asylum seekers picked the U.S. Instead of sending asylum seekers back to their lives of gang violence and persecution, the United States needs to do more to treat the source. We cannot just build a wall of Border Patrol agents and barbed wire while we look south to a country embroiled in a de facto civil war and further south to countries struggling under the dominance of gangs.