Gang Membership is Asylum Social Group in Seventh Circuit

David L. Cleveland writes for Immigration Daily:

Joseph E. Langlois, Chief of the Asylum Division in the US-CIS, issued a three-page Memorandum dated March 2, 2010, declaring that, within the Seventh Circuit, former gang membership “may” form a “particular social group.”

The Memorandum, addressed to “All Asylum Officer Staff,” quotes with approval from Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009).

Background

Mr. Ramos joined the Mara Salvatrucha gang in El Salvador at the age of 14. He remained a member until coming to the United States at the age of 23. Thereafter, he became a born-again Christian. He fears that if he were to return to El Salvador, the gang would kill him for refusing to rejoin. The BIA denied all relief; however, the Seventh Circuit reversed and remanded the case.

Reasoning of the Seventh Circuit

Ramos is a former gang member. He is not a current member. It is impossible to change history: he was a member from 1994 until 2003. This fact is immutable.

Congress did not intend to bar former gang members from constituting a particular social group. If it had wanted to, Congress could have enacted a mandatory bar for such people, as it did for persecutors. There is case law to the contrary: Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007). The Ninth Circuit stated that Congress could not have intended to offer asylum to violent criminals who assault people, traffic in drugs, and commit theft. However, Mr. Arteaga was still a member of the gang. The court in Arteaga did not consider the possibility that a person could be in a particular social group, yet still be denied relief for other reasons, such as having committed a “serious non-political crime;” [INA § 208(b)(2)(A)(iii)], or for having “participated in the persecution” of others.[INA § 208(b)(2)(A)(i).] .

The Arteaga court also did not acknowledge that the adjudicator has “discretion” to deny asylum to an eligible person. Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008).

No one argues that all former gang members should immediately and automatically be granted asylum. The narrow issue to be decided is simply whether former gang membership could be the basis for a particular social group.

Guidance to Asylum Offices from Mr. Langlois

The Memorandum states at Page 3 that within the Seventh Circuit, “former gang membership may form a particular social group if the former membership is immutable and the group of former gang members is socially distinct.”  click here for the rest of the piece.

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