Santos Chirino pleaded with an immigration judge to not return him to Honduras, where he feared he would be killed by the gang members against whom he had testified in court. The judge denied his asylum claim and he was shot to death less than a year after being deported.
Chirino’s case was unusual only in that his fate upon return was documented. The majority of claims for protection from Central Americans fleeing violent gangs, such as Chirino’s, are denied. This has been the outcome irrespective of the applicant’s credibility, or the brutality suffered in the past or feared in the future.
Under a fair application of U.S. refugee and asylum law, informed by international refugee law standards, the claims of Chirino and many others like him would be granted. But U.S. adjudicators have strained to find reasons to deny protection, adopting implausible and distorted interpretations of the “refugee” definition. The evolution of U.S. asylum law, which has resulted in these broad denials, preceded the Trump administration although his administration took the trend to new heights through reinterpretation of precedents and proposed regulations.
In an encouraging sign, however, one of Biden’s earliest Executive Orders (EO) on migration directed the Attorney General and the Secretary of the Department of Homeland Security (DHS) to examine all existing legal authority to “evaluate” whether U.S. protection for those fleeing gang violence is “consistent with international standards.” The EO, dated Feb. 2, 2021, directed the agencies to complete their review within 180 days and to issue joint regulations on applicable legal standards within 270 days.
The proposed regulations have yet to be released. The forthcoming rulemaking process provides the opportunity for a much-needed course correction, potentially aligning the U.S. with its international – as well as moral – obligations to stop sending asylum seekers to their deaths.
The Scourge of the Gangs
Gang violence in El Salvador, Guatemala, and Honduras is a significant driver of migration from the region and has become the basis for many claims to asylum. Two major gangs, M-18 and its rival, MS-13, exert territorial control over large swathes of the three countries. As gang presence has grown, so have levels of violence, resulting in El Salvador and Honduras having the highest homicide rates in the world, and Guatemala among the highest.
M-18 and MS-13 compete against each other for turf, extort large and small businesses, traffic in drugs, forcibly recruit young people, and demand girls and women become their sexual partners. Witnesses to crimes involving gangs or gang members are given a clear message to keep their mouths shut. Resistance to any of the gangs’ demands, more often than not, results in death to the resisting individual and/or their family.
As dangerous as it is to resist, many ordinary citizens do just that. Among them are young boys who want nothing to do with criminal activity, girls and women who believe they have the right to bodily autonomy, everyday people who see murder being committed and support prosecution by going to the authorities, and faithful members of religious communities who feel called upon to openly discourage youth from joining gangs.
Individuals who resist are courageous, but they are not suicidal. As the gangs’ threats against them escalate, and their efforts to hide become increasingly futile, many see that their only option is to flee north to the United States. Under the current state of U.S. asylum law, the majority will be found ineligible for protection and sent back to what is, in many cases, a death sentence.
When a Well-founded Fear of Death Is Not Enough
The United States is party to the 1967 Refugee Protocol and has incorporated into domestic law the international definition of a refugee as an individual with a “well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.” (As a matter of domestic procedural law, a refugee applies for relief through a limited set of channels outside of the United States, while an asylum-seeker – the status of most applicants fleeing Central American gangs – applies after they have already entered. But the legal standard for fear of persecution on a protected ground is the same and, in popular parlance, the two terms are often used interchangeably.)
The harms faced by those fleeing the gangs are frequently grave enough to constitute “persecution,” and the likelihood of suffering these harms is high enough for the fear to be considered “well-founded.” However, these claims falter at the requirement that the persecution be “on account of” – or have a nexus to – one of the five protected grounds (often referred to as enumerated grounds). The U.S. interpretation of “on account of,” and of each enumerated ground – but especially particular social group – diverges from international guidance and results in denial of protection where there is little doubt that the individual is at grave risk.
Countless cases demonstrate this. When gang members threatened to kill Héctor Sánchez-Vásquez, a young man whose Christian faith compelled him to proselytize against gangs, adjudicators decided the feared persecution was not on account of religion, but because of his refusal to join the gangs. Douglas Zelaya-Moreno, beaten and threatened after telling gang members that they were “bad for his hometown” and for his country, was not persecuted for his political opinion, but for resisting recruitment – a distinction truly without a difference. And a woman whose husband was murdered by gangs, and who cooperated with the police and narrowly escaped death herself, was found not to come within any of the enumerated grounds.
Consistency with international guidance would have likely led to a different outcome in each of these cases. Individuals who refuse to join a gang because their “religious beliefs are incompatible with gang lifestyle” may be found to be persecuted on account of religion. Those who refuse the “advances of a gang” because of “political or ideological opposition” can raise a claim based on political opinion. And numerous documents providing international guidance have noted the risk that witnesses of crimes face, and suggest they could be considered members of a particular social group.
These cases highlight two of the elements of the refugee definition that must be addressed in the forthcoming regulations: what it means for persecution to be inflicted “on account of” a protected ground, and the definition of the protected grounds themselves.
Ending the Hair-Splitting Approach to Nexus
International law describes the nexus element as requiring that the harm be “on account of” or “for reasons of” one of the five enumerated grounds. This broad phrasing supports the finding of nexus so long as there is a casual link between the protected ground and the persecution.
Delmy Gomez-Garcia was the president of a Salvadoran community development organization working on anti-gang policies. After she circulated a petition to create a local police department, MS-13 began vandalizing and robbing her office. Gomez-Garcia witnessed one of the burglaries and filed a police report, but was threatened into withdrawing the report. She continued speaking out against the gangs until she caught wind of MS-13’s plan to silence her by kidnaping her daughter, leading her to flee the country. Under international standards, Gomez-Garcia would qualify for protection, given the indisputable causal connection between her membership in the community development organization (a particular social group) and the gang’s threatening acts.
But U.S. law requires far more than showing a causal connection. Applicants must provide proof of the persecutor’s motives to establish that “one central reason” for the persecution was the protected ground. As a result, adjudicators focus on attempting to parse a persecutor’s motives to identify the predominant versus secondary motivations for harm, leading to an analysis that ignores the broader context in which the harm occurred. In Gomez-Garcia’s case, the courts decided that she was only targeted because she made a police report, as if her act of reporting that her organization’s office was being robbed could be distinguished from her status as a member of that organization. Thus, the courts concluded that her association with the community group did not motivate the gang’s threats.
Adjudicators did the same thing in Sánchez-Vásquez’s case (discussed above). Gang members told Sánchez-Vásquez that they would kill him if he didn’t stop distributing anti-gang pamphlets with his church youth group and join them. But the court denied Sánchez-Vásquez’s application for asylum because the gang members didn’t explicitly reference Sánchez-Vásquez’s religious beliefs when they were threatening to kill him, only mentioning his distribution of anti-gang religious materials and his refusal to join. This reasoning ignores the fact that Sánchez-Vásquez was at risk precisely because his religious beliefs compelled him to defy the gangs. International norms, as well as plain common sense, would find his persecution to be on account of religion.
Under the U.S. approach, the nexus analysis has become an exercise in arbitrary line-drawing. As the Biden administration engages in rulemaking, it should realign U.S. law with international standards, recognizing that nexus is established when the harm is motivated by the protected ground, or when the protected ground is a cause of the persecution.
Returning to a Fair Interpretation of the Protected Grounds
The problems with nexus are bad enough, but they are compounded by a distorted and unjustifiable interpretation of the protected grounds themselves, most notably political opinion and particular social group.
U.S. courts have adopted a narrow read of the political opinion ground in gang claims. In Zelaya-Moreno’s case (discussed above), he repeatedly refused to join the gang, telling its members that they were harming his community. At one point, the gang had police officers kidnap Zelaya-Moreno and bring him to a gang leader. The police stood by and observed while the gang leader broke Zelaya-Moreno’s arm after he again voiced his disapproval of the gang. Incredibly, the courts denied Zelaya-Moreno protection after concluding that the gang – which had the police at its beck and call – was not really political, and because Zelaya-Moreno was not specific enough about why he opposed the gang while they were attacking him. Under international standards, which urge an expansive understanding of the “political opinion” ground, Zelaya-Moreno would have received protection.
But nowhere is the United States’ restrictive interpretation of the grounds as evident as with the particular social group ground, as previously discussed in Just Security. And the impact of the heightened social group standard has been especially profound in fear-of-gang cases.
The United Nations High Commissioner for Refugees (UNHCR) identifies two types of social groups that qualify for protection. First, it recognizes social groups defined by a common characteristic, usually one that cannot be changed or is fundamental to a person’s identity, like gender or sexual orientation. Second and independently, UNHCR recognizes social groups defined by the fact that the relevant society perceives the group as a group. For example, if a society considers “shopkeepers” to be a group, it qualifies under this second route to recognition, even if the shared characteristic is arguably not unalterable or fundamental to identity.
Starting in the 1980s, the United States adopted a definition of “particular social group” that corresponded to the first type of social group membership recognized by UNHCR, requiring applicants to show their group was united by a shared immutable characteristic that they could not change or should not be required to change. But in the mid-2000s, the United States started accepting only those groups that meet both prongs of UNHCR’s standard (a standard never intended to form a two-pronged test) while adding a third requirement that the group be defined with particularity – meaning that the terms the applicant uses to define their group clearly identify membership criteria.
Recent cases illustrate the absurdity of the United States’ approach. Cartel members in Mexico kidnapped Gemma Rosales-Reyes and her infant son when they were walking to a store, holding them hostage for 24 hours without food, water, or access to a bathroom. The cartel told Rosales-Reyes she had to start selling drugs and drove the point home by pressing a live electrical wire into her son’s hand while threatening her other children. Rosales-Reyes refused, but knew she had to immediately flee Mexico to stay safe. Her fear soon proved well-founded when her uncle was murdered while staying at her house.
Under UNHCR’s standard and the United States’ initial approach, Rosales-Reyes would have qualified for protection. Her group, Mexican mothers who refuse to work for the cartels, is grounded in characteristics that she cannot or should not have to change: her nationality, parental status, and defiance of the cartel. But the courts rejected her group for failing to meet the third requirement of particularity, claiming it didn’t stand out as a distinct group in society since the cartel targets everyone who opposes it – effectively denying protection because the cartel was too aggressive in its persecution. Under no standard of refugee protection is the fact that a persecutor targets many categories of individuals a basis for denying protection to any one group. The relevant question is whether the group is defined by immutable or fundamental characteristics, or is considered by society to constitute a distinct group.
The fusing of UNHCR’s disjunctive test into a unitary standard that also features a third particularity requirement has had disastrous consequences. People who gangs will indisputably target for violence because of a characteristic they cannot or should not have to change are regularly denied protection and sent back to their countries of origin, where many have faced exactly the persecution and death that they feared. The United States had it right initially. In rulemaking, the Biden administration must return the United States to its initial approach of recognizing social groups so long as they are defined by an immutable characteristic.
The Moral Obligation Undergirding Asylum Protection
Our arguments above are directed to what we believe to be a principled interpretation of U.S. refugee law, aligned with international standards. However, beyond the legal arguments is a simple moral imperative: saving the lives of those at risk. This is a bedrock principle of major world faiths, moral philosophy, and human rights.
Consistent with this ethos, Article 33 of the 1951 Refugee Convention requires that “no…state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened on account of [their] race, religion, nationality, membership in a particular social group or political opinion.” And, in the spirit of the expansive, morally grounded protections envisioned for refugees in ethical and legal systems, Article 31 holds that no refugee may be penalized for breaking the immigration laws of a country if they did so to claim asylum. A country may not deny protection simply because a refugee entered a country without permission.
Even the call by opponents of refugee protections to care for “our own” – meaning existing citizens of the country – first before extending protections to refugees falls flat. Fulfilling the moral imperative to “welcome the stranger” who has arrived in a country after fleeing for their life does not impair a country’s ability to provide for its own existing citizens. Indeed, quite the opposite: much of the United States’ economic prosperity, international power, and cultural vibrancy has been founded on population growth bolstered by migration – including the welcoming of generations of refugees.
Ultimately, the United States can save lives by truly aligning its refugee law with international norms, humanitarian objectives, and moral imperatives. Or it can send people back to their deaths by applying narrow interpretations of the law. In rulemaking, the Biden administration must clarify that nexus is established when the protected ground motivates or is a cause of harm; that a broad array of beliefs constitute political opinions; and that a particular social group is established when its members share a common, immutable characteristic. It is time for the United States to honor its commitments and its principles by protecting people at its borders who have fled for their lives, rather than delivering them back into harm’s way.