The Gangs of Asylum

Should immigrants fleeing gang violence be entitled torefuge in the United States? Today, the response of mostU.S. courts is "no." The principal means by which anindividual fleeing his home country seeks safety in theUnited States is by qualifying for asylum or withholdingof removal. Notwithstanding some critical distinctionsbetween asylum and withholding of removal, eachprotection requires a claimant to demonstrate his fear of persecution is on account of race, religion, nationality,membership in a particular social group or politicalopinion. Yet rather than evaluating gang-based claimsupon existing refugee standards, the courts aremanipulating the refugee criterion of "membership in aparticular social group" through heightened tests of"particularity," "social visibility," and administrativeexclusion.

In so doing, virtually all permutations of gang-based claims are being denied. Those refused protectioninclude not only active gang members but former gangmembers, perceived gang members, gang resisters, and thefamilies of such groups.Membership in a particular social group does notpossess the almost intuitive definition like those enjoyed byrace, religion, nationality, and political opinion. Yet, eachof the five factors is intended to be fairly and evenlytreated. After reviewing the ill-conceived and ill-appliednature of the three developments within particular socialgroup analysis, this Essay argues for a return toconsistency without the danger of a gang insurgency.