Matter of S-E-G-

• Decision Date: 30 July 2008
• Docket Number: Interim Decision No. 3617.
• Citation: 24 I&N Dec. 579
• Parties: Matter of S-E-G-, et al., Respondents.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 579

Matter of S-E-G-, et al., Respondents.

Interim Decision No. 3617.

Board of Immigration Appeals.

Decided July 30, 2008.

Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang's values and activities nor the family members of such Salvadoran youth constitute a "particular social group."

FOR RESPONDENT: Benjamin Casper, Esquire, West St. Paul, Minnesota.

BEFORE: Board Panel: GRANT and MILLER, Board Members; CLARK, Temporary Board Member.

GRANT, Board Member.

In a decision dated September 6, 2006, an Immigration Judge denied the respondents' applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The respondents have appealed from that decision. The Department of Homeland Security has not provided a response. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

A. Facts

At the time of the hearing, the female respondent was 19 years old and her two younger brothers were 16 years old. The respondents lived in El Salvador, but they fled their country in 2004 because of violence and threats from a criminal gang called the "Mara Salvatrucha" or "MS-13." The MS-13 threatened the youth in the area and controlled the neighborhood in which the respondents lived.

In June 2004, the MS-13 stole money from the brothers, harassed and beat them for refusing to join their gang, and threatened to rape or harm the female respondent. Neither of the brothers required medical treatment as a result of the beatings, but armed MS-13 gang members warned the respondents that the brothers must join the gang or else their bodies might end up in a dumpster or in the street someday. Fearing retaliation and believing the police would not help them, the respondents never reported the beatings and threats to the two police officers in their neighborhood. Eventually, the MS-13 warned the respondents that they had been given sufficient time to make a decision about whether to join the gang, and they advised the respondents to take the gang seriously because the threats were not a game. A few months prior to their departure from El Salvador, the respondents also learned that the MS-13 shot and killed a young boy in the neighborhood after he refused to join the gang.

The respondent's expert witness, a professor at the Central American University, studied gangs or "maras" in El Salvador since 1996. He testified that the MS-13, which originated in Los Angeles, California, and spread to Latin America, is comprised of youth who operate mainly in urban areas and who often commit serious crimes. The MS-13 is active in the area where the respondents' hometown is located. Although the Salvadoran Government prosecutes and imprisons gang members, gangs have become stronger and more organized over the past 15 years. The "Manoduro" was a policy of the former Government to control the gangs, and the current Government has unveiled a new anti-gang plan called the Master Plan for Security. Some mainly private programs exist to help Salvadoran youth avoid the gangs, but the Government programs are weak and focus on gang suppression, rather than on gang prevention.

In the professor's opinion, the police are not capable of controlling the MS-13, which acquires members, in part, through the forcible recruitment of young males who live within an MS-13 controlled zone. Economic position is an important factor in determining whether an individual will be recruited by a gang, since the gang is less likely to recruit young people from middle or upper middle class areas. The average age for recruitment is 12 years of age, and gangs retaliate against those who refuse recruitment efforts by threatening the potential recruit and his family members. An individual who refuses recruitment by the MS-13 would have a reasonable fear of harm in El Salvador because it is a small country, there is a constant flow of information and communication within the country, and it would be very difficult to find a place where a person could be sure of not being identified by the MS-13. Because gang members have some influence within the Government and on certain police officials, they can protect themselves from prosecution.

B. Immigration Judge's Decision

The Immigration Judge found that the respondents were removable based on their own admissions. He also determined that their testimony was credible but concluded that they had failed to establish either past persecution or a well-founded fear of future persecution on account of a protected ground. The Immigration Judge ruled that the beatings and threats against the respondents were based on the gang's desire to recruit new members and fill their ranks, rather than to punish the respondents for their membership in a particular social group or their political opinion. Finding a lack of the required nexus, the Immigration Judge denied the respondents' applications for asylum and withholding of removal.

The Immigration Judge also determined that the respondents failed to establish that the Government of El Salvador was unable or unwilling to control the criminal gangs. He concluded that the background evidence indicated that the Government had made a number of efforts to control the gangs and had arrested and prosecuted their members through various gang suppression programs. The Immigration Judge also denied the respondents' claims under the Convention Against Torture, concluding that the Government of El Salvador had not acquiesced in the gang activities, although it is having difficulty controlling the gangs. See 8 C.F.R. § 1208.18(a)(1) (2008).

C. Arguments on Appeal

On appeal, the respondents argue that they produced adequate evidence to show that their persecutors were motivated to harm them because of their membership in the particular social groups of (1) Salvadoran youth who have been subjected to recruitment efforts by MS-13 and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang's values and activities; and (2) family members of such Salvadoran youth. The respondents also argue that the gang members persecuted them on account of their political opinion, i.e., that of opposition to the gang's activities.

II. ANALYSIS

An applicant for asylum has the burden of establishing that he or she is a refugee within the meaning of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006). To do this, the alien must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution on account of one of the five enumerated grounds in section 101(a)(42), which include race, religion, nationality, membership in a particular social group, or political opinion. See INS v. Elias Zacarias, 502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). We first address whether the respondents have established membership in a particular social group.

A. Particular Social Group

We have not previously addressed whether either of the putative social groups described by the respondents—Salavadoran youths who have resisted gang recruitment, or family members of such Salvadoran youth—constitutes a "particular social group" cognizable under section 101(a)(42) of the Act. Likewise, while several Federal circuit courts have issued decisions in related cases, none has specifically addressed whether those who have resisted recruitment to such gangs constitute a particular social group. For example, the United States Court of Appeals for the Eighth Circuit, in whose jurisdiction this case arises, held that an El Salvadoran who had been shot at by a gang member, and had family members severely injured or killed by the gang member, failed to establish that the harm was inflicted by the Government of El Salvador, or by a person or entity that the Government was unwilling or unable to control. Menjivar v. Gonzales, 416 F.3d 918, 921-22 (8th Cir. 2005). The court did not, therefore, reach the question whether the alien was a member of a particular social group. See also Ortiz-Araniba v. Keisler, 505 F.3d 39 (1st Cir. 2007); Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir. 2004).

In other cases, the circuit courts have rejected claims that gang members, or those who could be identified as such, are members of a particular social group. Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007); Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003), modified on other grounds, Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006). The Third Circuit, in the case involving a Honduran applicant, remanded the record for our consideration of the issue presented in the instant case. Valdiviezo-Galdamez v. Att'y Gen. of U.S., 502 F.3d 285 (3d Cir. 2007).

In deciding this question, we are guided by our recent decisions holding that membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility. See Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007), aff'd, Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007); Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), aff'd, Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190 (11th Cir. 2006), cert. denied sub nom. Castillo-Arias v. Gonzales, 127 S. Ct. 977 (2007). These concepts of "particularity" and "social visibility" give greater specificity to the definition of a social group, which was first determined in Matter of Acosta, 19 I&N Dec. 211, 233 (BIA...