Children seek refuge from gang-forced recruitment: how asylum law can protect the defenseless.

• Author: Paz, Frank

Introduction I. The Current State of Affairs in Central America and in the U.S. Asylum Process A. The Government Corruption and Plague of Gang Violence in the Inner Cities of El Salvador, Honduras and Guatemala B. The U.S. Asylum Process II. Conflicting Views on the Proper Asylum Test A. The Evolution of the Definition of "Membership in a Particular Social Group" 1. The Board of Immigration Appeals Takes the First Step: Acosta 2. The Supreme Court Defers to the BIA 3. The BIA's Social Distinction and Particularity Requirements 4. The Circuit Courts Disagree on the Appropriate Deference Level a. The First Circuit Upholds the BIA's Test b. The Fourth Circuit Applies the BIA's Three Step Test c. The Ninth Circuit Provides Its Own Asylum Test d. The Seventh Circuit Rejects "Social Distinction" e. The Third Circuit Rejects the BIA's Additional Requirements B. Membership in a Particular Social Group in the Context of Central American Gangs 1. The BIA Takes a Position on Gang Related Asylum Claims 2. The First and Fourth Circuits Agree and Deny Asylum 3. The Third and Seventh Circuits Have Not Addressed the Issue 4. The Tenth Circuit Finds Only "Particularity" 5. Summary of Issues for Analysis III. The BIA Is Entitled to Deference and Child Victims of Gang Violence are Entitled to Asylum A. The BIA Should Be Afforded Chevron Deference B. The Third and Seventh Circuits Should Grant Asylum 1. Gender, Age, and Resistance to Recruitment Are Common, Immutable Characteristics 2. Gender, Age, and Refusal to Join a Gang Define the Group with Particularity 3. Gender, Age, and Refusal to Join a Gang Socially Distinguish Members of the Group Conclusion INTRODUCTION

Jorge Solomon-Membreno and Fatima Marlene Villanueva-Membreno are siblings who grew up in their grandmother's house in Sensuntepeque, El Salvador. (1) Sensuntepeque suffers from prolific gang violence at the hands of MS-13, a transnational gang that commits ongoing acts of assault, rape, and torture. (2) MS-13 is present in every part of El Salvador, and exercises control over innocent civilians with horrific acts of violence. (3) During his adolescence, Jorge was approached by members of MS-13 in an attempt to recruit him, but Jorge refused. (4) His sister Fatima, who was eleven years old at the time, endured a barrage of sexual harassment from MS-13 members, who at one point threatened to "get her." (5) On her way home from school, Fatima was seized and knocked unconscious. (6) When she regained consciousness, her chest was exposed, her clothes were ripped, and she felt an immense pain in her stomach. (7) Jorge confronted the gang members he believed to be responsible for Fatima's rape; they responded by beating Jorge until he ran to safety. (8) Jorge did not seek help because he thought the police would provide no assistance, as is common in El Salvador. (9) Jorge and Fatima sought refuge from the gang at their aunt's home in a nearby town. (10) After some time, they returned to their grandmother's home, but confined themselves inside to avoid encountering the gang again. (11)

Jorge fled El Salvador and entered the United States near Tecate, California. (12) There, the Department of Homeland Security served him with a Notice to Appear in removal proceedings. (13) Fatima stayed at her grandmother's house, but shortly followed in her brother's footsteps after discovering her grandmother's home had been set on fire. (14) Fatima entered the United States near Hidalgo, Texas, and was also served with a Notice to Appear in removal proceedings. (15) Jorge and Fatima applied for asylum to avoid being deported back to El Salvador, where they were sure MS-13 awaited their arrival. (16) After lengthy legal proceedings and a denial of their application, Jorge and Fatima appealed their case to the Fourth Circuit. (17) The Fourth Circuit affirmed the denial of their asylum application, concluding that Jorge and Fatima did not constitute "refugees" under the Immigration and Nationality Act (INA) because they did not satisfy the Act's definition of "a refugee." (18)

Section 1158(b)(1)(A) of the INA, which is the statute governing asylum claims, requires that an applicant establish that he or she is a refugee in order to obtain asylum in the United States. (19) In order to establish refugee status, an applicant must show that he or she is persecuted because of his or her race, national origin, political opinion, or membership in a particular social group with defined boundaries. (20) Fatima and Jorge sought to establish refugee status by asserting that they were being persecuted by gang members on account of their membership in a particular social group. (21) The Fourth Circuit denied their application because their proposed group lacked boundaries. (22) Without asylum, Fatima and Jorge would have to return to the very nightmare they sought to escape.

Jorge's and Fatima's experience with gangs in El Salvador and in the United States court system is not unique. (23) Their story is a prime example of the very issue circuit courts are confronted with by the recent influx of immigrants from Honduras, El Salvador, and Guatemala. (24) Many Circuits have attempted to resolve the issue of whether the "membership in a particular social group" category of "refugee" includes children who flee gang violence in inner cities. (25) Courts of Appeals have reached different conclusions about whether the provision covers situations like those faced by Jorge and Fatima. (26) This division has led to a lack of uniformity in the application of Section 1158(b)(1)(A), and individuals with almost identical cases can receive contradictory judgments. (27)

Part I of this Note discusses the history of gang violence and government corruption in Honduras, El Salvador, and Guatemala. Additionally, Part I explains the basic asylum process under Section 1158(b)(1)(A), which every individual must navigate to be granted asylum. Part II of this Note examines the requirements the Board of Immigration Appeals (BIA) has promulgated for defining a particular social group and the differing tests that circuit courts have used to determine if an individual meets those requirements. The BIA scrutinizes every purported particular social group with a three-part test, (28) but circuit courts have not unanimously accepted this test. (29) In addition, Part II explores the BIA and circuit court jurisprudence with respect to proposed particular social groups in the context of Central American gangs. Although most circuits have denied asylum to children fleeing gang violence in Central American cities, there are two circuits that have yet to take on the issue, and another circuit that stands with only one foot in the door of acceptance. (30)

Part III of this Note adopts the BIA's three-part test to analyze asylum applications of individuals seeking to establish a particular social group. Since the BIA has the authority to oversee the adjudication of asylum applications and the BIA has properly explained its reasoning for the three-part test, its standard deserves deference. However, this Note disagrees with the BIA with respect to whether children fleeing gang violence are entitled to asylum, by concluding that individuals between the ages of eleven and eighteen, who escape gang-forced recruitment, are deserving of asylum. (31)

1. THE CURRENT STATE OF AFFAIRS IN CENTRAL AMERICA AND IN THE U.S. ASYLUM PROCESS

   1. The Government Corruption and Plague of Gang Violence in the Inner Cities of El Salvador, Honduras, and Guatemala

      Horrific violence committed by growing gangs, such as MS-13, plagues El Salvador. (32) Gangs, whose membership numbers are more than 85,000, participate in kidnapping, extortion, and forced recruitment. (33) These groups in general, and MS-13 in particular, rely on forced recruitment to expand their memberships. (34) Male children often attempt to leave El Salvador because of a fear of assault or death for refusing to join gangs. (35) Additionally, gangs threaten to kill the families of the young boys they try to recruit, (36) and female children fear rape or kidnappings at the hands of gang members. (37)

      El Salvador's citizens are at the whim of these gang activities because the judicial system and executive branch do not provide much assistance. (38) Unfortunately, this has led El Salvador to be ranked first in the world for femicide (female homicide) and lethal violence in 2011. (39) The Salvadoran government's tolerance of violence against women has specifically contributed to the leading femicide rate. (40) Gangs take advantage of the government's apathy toward women and target them for prostitution and sex trafficking if they refuse to join the gang. (41) These gangs, however, often do not stop with physical harm and sexual assault, but choose to follow through with death threats. (42) In a nation crippled by violence and a judicial system that refuses to help, children are taking the risk of fleeing El Salvador by themselves, rather than staying at home. (43)

      Likewise, Honduras suffers from severe violence at the hands of transnational gangs, who commit acts of murder, extortion, and kidnapping. (44) Honduras also maintains an atmosphere of corruption, intimidation, and weakness in its justice system, which is underfunded, poorly staffed, and highly ineffective. (45) Even the Honduran legislature has taken part in the corruption by suspending the attorney general and removing four magistrates from the Constitutional Chambers of the Supreme Court, contrary to its Constitution. (46) Criminal prosecutions in Honduras are crippled by a lack of witness protection, poor evidence brought by the prosecution, and widespread distrust of the legal system. (47) For women, the problem is particularly serious because violence against women continuously rises, and perpetrators too often are not convicted. (48)

      The excessive level of violence and the breakdown in the judicial system has given Honduras the...